SIMMA KRISHNAMMA Vs. NAKKA LATCHUMANAIDU

JUDGEMENT

(1.) THIS second appeal is directed against the decree and judgment of the Court of the Sub ordinate Judge, Srikakulam confirming that of the District Munsif, Srikakulam, dismissing the petition filed by the appellant for ascertainment of mesne profits.

(2.) ONE Nakka Appala Naidu filed O. S. N 555 of 1942 in the Court of the District Munsif, Srikakulam, for partition of the plaint schedule property against defendants 1 to 3 and obtaining a preliminary decree for partition on 9 -9 -1944. In the plaint, there was no prayer for the ascertainment of future profits. That decree was modified in Second appeal on 13 -10 -1949. The preliminary decree did not in terms give any direction for the ascertainment of future profits. The decree -holder transferred all his rights under the preliminary decree and also his claim for prof to the appellant, and the transfer was recognized by the Court. On a petition filed by the transferee decree -holder i.e., the appellant, a final decree was passed on. 10 -12 -1951.

(3.) LEARNED counsel for the appellant tends that, in a partition suit, there can be more than one final decree, that the claim for mesne profits is part of the subject -matter of the that so long as the claim is not disposed of by the Court, a subsidiary decree for ascertaining future profits could be made and that, in the present case, an application for future profits as filed before the appeal against the final decree was disposed of and, therefore, the Court had to ascertain mesne profits and to incorporate the same in a subsidiary decree.