VEMULA GOPALA SWAMY Vs. MODUGUMUDI DHANNAIAH

JUDGEMENT

(1.) The defendant in O.S.611 of 1975 on the file of the Principal District Munsif, Machilipatnam is the revision-petitioner. The respondent-plaintiff filed the said suit for specific performance of contract far sale of the suit land. The respondent, inter alia, alleged in the plaint that possession was given to him under the alleged agreement for sale, and sought injunction from the trial court which was granted on 9-10-1975. On 21-3-1982 the suit was decreed by the trial court. However, on appeal by the petitioner herein viz., A.S.62/82 on the file of the District Judge, Krishna, the judgment and decree of the trial court were set aside and the suit of the respondent was dismissed. Matter was carried in Second Appeal 833/1985 which was dismissed on 21-1-1987. Meanwhile, the respondent (sic. petitioner) filed E.P.131/1985 for restitution under Section 144 of the Code of Civil Procedure. In the said E.P., he filed/E.A.665 /87 for delivery of the petition-schedule property. That petition was, however, ordered on 11-4-1989. The respondent filed CRP1344/1989 but the same was dismisse on 21-6-1989. While so, the respondent (sic. petitioner) filed another EA512/88 for recovery of mesne profits from 1975 to 1988 on 4-6-1988. By order dt.4-12-1991 EA 512/88 was dismissed; challenging the validity of the said order the present CRP is filed.

(2.) Sri Anand, learned counsel for the petitioner, submits that the executing court dismissed the EA on the ground that mesne profits couJd not be granted by way of restitution, and that the same have to be claimed by way of a separate suit which is contrary to the judgment of this Court in CRP 1344/1989 dated 21-6-1989. Learned Counsel for the respondent contends that the order of this Court in CRP 1344/89 was not brought to the notice of the court below. That apart, the order is otherwise valid as neither the EP was maintainable nor EA 512/88 out of which this CRP arises was maintainable. There was no executable decree, submits the learned counsel for the respondent, to maintain the EP. The petitioner having filed E A 665/87 for possession should have claimed any other relief in the same EA and cannot file successive petitions for successive reliefs. Therefore, on this ground also theorder of the executing court can be maintained.

(3.) The short question that arises for consideration is, whether in EA 512/88 the petitioner is entitled to claim mesne profits.