PANIKKATHE KUTTI PENNU MARUVALAMMA S SON RAGHAVA MANNADIAR Vs. PANIKKATHE KUTTI PENNU MARUVALAMMA S SON THEYYUNNI MANNADIAR

JUDGEMENT

(1.) The plaintiff-appellant filed a suit for partition and recovery of a half share in the property. The prayer in the plaint runs thus: (a) Directing that the properties mentioned in the sub-joined schedule be divided into two equal shares and the properties allotted to one of such sharers be given to the possession of the plaintiff and that the properties belonging to the first defendant's share be made a charge for the Court costs and other amounts due to the plaintiff by the first defendant; (b) Directing the first defendant to pay the plaintiff's costs of this suit with interest; and (c) Granting other reliefs which the plaintiff may pray for in the course of this suit and which the Court might deem fit to allow.

(2.) The preliminary decree declared (1) that the properties available for partition are items 1 to 16 and the jenm right only over item 17 of the plaint schedule; (2) that they are to be divided into two equal shares, the plaintiff getting one share and the first defendant getting the other share. Paragraph (3) dealt with the liabilities. The other paragraphs dealt with outstandings. After the Commissioner prepared a scheme of division, the plaintiff-appellant asked for an account of the profits subsequent to the date of the plaint. In paragraph 9 of the affidavit filed in support of the petition it was stated thus: As defendants 1 and a are thus holding possession of the properties in the schedule to the decree and enjoying the profit, the plaintiff is entitled to get towards his share 350 paras of paddy per annum with interest 2 per cent from the date of plaint to the date of his getting actual possession of his half share, and accordingly having ascertained the amount, the same may be directed to be paid by the first defendant or if necessary by the second defendant. One of the objections was that there was no specific prayer in the plaint for profits from the date of suit and the other was that the preliminary decree did not deal with the question of profits and did not contain a direction that the defendants should be liable for profits. The trial Court refused relief on two grounds : firstly that the plaint did not ask for mesne profits subsequent to the date of suit and secondly that as the preliminary decree did not contain any direction about the profits subsequent to the date of suit, the plaintiff was not entitled to ask for it at the stage of the final decree. In support of this proposition, the decision of this Court in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296, was relied upon. On appeal the Subordinate Judge followed the decision in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296, and confirmed the decision ofthe trial Court. The Subordinate Judge saysthatthedecision in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296 was confirmed in a later decision in BapaLaksh-mamma V/s. Koteswara Rao 1931 M.W.N. 846 and that it was again referred to with approval in Subbiah V/s. Kotamma . When his attention was drawn to a decision of this Court in Rama-swami Aiyar V/s. Subramania Aiyar the Subordinate Judge says this: The decision in Ramaswami Aiyar V/s. Subramania Aiyar , does not really seem to be an authority for the opposite position in any direct way. That case if at all can apply to the present one only by an extension of the principles actually laid down therein. I do not think that in the light of the direct authorities on the question it would be proper to apply the case in Ramaswami V/s. Stibramania Iyer as laying down a contrary proposition. In Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296 the suit was one for partition and the preliminary decree did not contain any direction as to the profits subsequent to the date of suit. At the stage of the final decree a request was made for enquiry on that matter. The learned Judges referred to two provisions of the Code, Order 20, Rule 12 and 18. They first referred to Order 20, Rule 12 which applies to a bare suit for possession. It was pointed out that if the decree for possession did not contain a direction for an enquiry into mesne profits an application under Order 20, Rule 12 cannot be filed after the decree. Then the learned Judges refer to Order 20, Rule 18 which deals with preliminary decrees in partition suits and they applied the principle of Order 20, Rule 12 to a case of partition decree under Order 20, Rule 18. That no doubt is an authority for the position that if the preliminary decree does not contain a direction for enquiry into subsequent profits, it should not be gone into at the stage of the final decree.

(3.) But this case has never been followed by this Court on the question of profits subsequent to the date of suit in partition actions. The Subordinate Judge has not correctly read the later decisions which he says follow the decision in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296. The first of the decisions referred to by the Subordinate Judge as confirming the principle contained in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296 is Bapa Lakshmamma V/s. Koteswara Rao 1931 M.W.N. 846. In that case there was a preliminary decree for partition which did not contain any direction for subsequent profits. At the stage of the final decree, the question was mooted and the final decree directed an enquiry into mesne profits under Order 20, Rule 12. Then an application under Order 20, Rule 12 was filed. At that stage objection was taken that no enquiry into subsequent profits could be directed. Reliance was placed on the decision in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296 and Cornish, J., while referring to it held that whether the final decree in the case before him was right or wrong, it was binding on both parties as it had been allowed to become final and that therefore the direction as to an enquiry under Order 20, Rule 12 was not open to question. Referring to the decision in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296 the learned Judge said this: That principle is not disputed by Mr. Raghava Rao, who appears for the petitioner, but he contends that though the inclusion of mesne profits in a final decree is erroneous as a matter of procedure still the decree having become final and the judgment-debtor having taken no steps to vacate it or revise it, it is not open to any one to go behind that decree in execution. I think that this contention is right. It is not open to an executing Court, if on the face of the decree there is no want of jurisdiction, to question the decree. Rightly or wrongly the position was conceded by the advocate and it cannot possibly be stated that the principle of Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296, was affirmed by Cornish, J. When it is not necessary to deal with the correctness of an earlier decision and the case could be disposed of on another point, judges are not anxious to deal with the correctness of the earlier decision particularly as the learned advocate who appeared for the decree-holder conceded the correctness of the decision in Ghulusam Bivi V/s. Ahamadsa Rowther (1918) I.L.R. 42 Mad. 296 and proceeded to distinguish the case before him on the ground that the final decree had become final. Nor are advocates anxious to question the correctness of earlier decisions when it is not necessary to do so.