PRABHALA SURYANARAYANA Vs. PRABHALA SREERAMACHANDRAMURTI

JUDGEMENT

(1.) The question raised in this Civil Revision Petition is whether an application for ascertainment of mesne profits and for the passing of a final decree in a suit for partition, for mesne profits and for accounts is governed by Article 181 of the Limitation Act. The suit was filed by the respondent for partition of the plaint A and B scheduled properties and for delivery of one such share to the plaintiff and for mesne profits and accounts, and it was decreed on 20th February, 1948. The petition giving rise to this Civil Revision Petition was presented on 13th July, 1953, before the Subordinate Judge, Vijayawada, for the appointment of a commissioner for ascertainment of mesne profits and for the passing of a finaldecree. The petition was opposed by the judgment-debtors on the ground that it was barred by limitation as obviously it was beyond three years of the passing of the preliminary dicree. The basis of this defence was Article 181 of the Limitation Act.

(2.) The above objection was overruled by the trial Court which thought the petition did not fall within the scope of Article 181 of the Limitation Act. For this conclusion reliance was placed on a judgment of the Calcutta High Court in Bhushan Chandra v. Chabimoni Dasi, A.I.R. 1948 Cal. 363.. It also observed that in any event the petition was saved because it was filed within three years from the date when the plaintiff attained majority.

(3.) This order of the Subordinate Judge is attacked by Mr. Krishnamurthy as an erroneous one. According to the learned counsel, Article 181 of the Limitation Act is attracted to an application for ascertainment of mesne profits and also for the passing of a final decree. This argument is founded on Rama Rao v. Sreeramamurty, (1936) 71 M.L.J. 388 where a Bench of the Madras High Court decided that ascertainment of mesne profits should be applied for within three years of the passing of the preliminary decree, approving the view expressed by Jackson, J., in Timmaraju v. Narasimha Raju., (1928) 54 M.L.J. 665. This ruling does support the contention of Mr. Krishnamurthy But, it was overruled by a Full Bench of the Madras High Court in Ramasubrahmanya Pattar v. Karimbil Pati., (1940) 1 M.L.J. 54 : I.L.R. (1940) Mad. 372 (F.B.).