N JANAKAMMA Vs. B VENKATA LAKSHAMMA

JUDGEMENT

(1.) The petitioner herein filed O.S\No.41 of 1981 in the Court of Senior Civil Judge, 3 Atmakur, against her step-mother, the respondent herein, and five others, for partition. The trial Court dismissed the suit, on 05-03-1984. Thereupon, the petitioner filed A.S.No.2072 of 1986 before this Court. The appeal was allowed and a preliminary decree was passed on 12-11-2001, directing, inter alia, that the petitioner on the one hand and the respondent on the other, shall be entitled to half share, each, in the surt schedule properties.

(2.) The petitioner filed four applications, namely, I.A.No.27 of 2002 for passing final decree; I.A.No.28 of 2002 for appointment of a Commissioner to divide the plaint schedule properties; I.A.No.141 of 2004, under Order XX Rule 12 C.P.C., for appointment of a Commissioner, to determine the mesne profits, with reference to items 1 to 4 and 8 to 11 of the suit schedule properties for various periods, and I.A.No.138 of 2005, under Order XXI Rule 42 C.P.C., for attachment of the share of the compensation payable to the respondents in O.P.Nos.5045 and 5046 of 1987. The trial Court dismissed l,A.No.138 of 2005, through its order, dated 27-09-2006. The other three applications are said to be pending. This revision is directed against the order in I.A.No.138 of 2005.

(3.) Sri O. Manohar Reddy, learned counsel for the petitioner, submits that though the preliminary decree is silent as to mesne profits, it is always open to the plaintiff or defendant, in a partition suit, to pray for a decree of mesne profits, as long as no final decree was passed, and that the interests of the petitioner must be protected till the trial Court disposes of I.A.No.141 of 2004. He contends that in O.P. Nos.5045 and 5046 of 1987, the compensation payable for the lands, which were acquired by the Government, was apportioned between the petitioner and the respondent, and if the latter is permitted to withdraw the same, the order that may be passed by the trial Court for mesne profits, may become otiose.