NADIMPALLI CHANDRAKANTAM Vs. VELAVARTIPATI CHANDRAMOWLIPRASADA RAO

JUDGEMENT

(1.) This is an appeal by defendants 1 and 3 in O.S. No. 731 of 1933 on the file of the Court of the District Munsif of Guntur against an order of remand passed by the Subordinate Judge of Guntur in A.S. No. 73 of 1946. In O.S. No. 731 of 1933 which was a suit for partition, a preliminary decree was passed on 23 December, 1937. The preliminary decree directed inter alia. that the mesne profits due to the plaintiff on his share mentioned above be determined on a separate petition by the plaintiff in execution.

(2.) The plaintiff filed C.M.P. No. 697 of 1945 out of which the present civil miscellaneous appeal arises on 22nd February, 1945. The application was filed under Order 20, Rule 12 of the Civil Procedure Code. Defendants 1 and 2 contended that the petition was barred by limitation. They also raised objections as to the period for which mesne profits could be allowed and as to the amount claimed. The District Munsif dismissed the petition as barred by limitation and did not therefore enquire into the quantum of mesne profits allowable to the plaintiff. Nor did he record any finding as to the period for which mesne profits could be granted. On appeal by the plaintiff the Subordinate Judge of Guntur held that the application was not barred by limitation and remanded it to the District Munsif for enquiry and disposal.

(3.) The only point that arises in this appeal is one of limitation. It has first been argued by Mr. Satyanarayana Razu, the learned advocate for defendants 1 and 2 that since the application was made more than three years after the preliminary decree it is barred by limitation under Art. 181 of the Limitation Act. This point however is directly covered by a decision of the Full Bench in Ramasubramania Pattar V/s. Karimbil Pati It was there pointed out that there is no need for a plaintiff in a partition suit to apply for the passing of a final decree as regards mesne profits. All that he need do is to remind the Court that the question of mesne profits remains to be disposed of. Order 20, Rule 12, Sub-rule (3) of the Civil Procedure Code as it stood when the Full Bench decision was given referred to an "application" by the decree-holder for an enquiry into mesne profits and the passing of a final decree in respect thereof. The Full Bench held that the word "application" in that sub-rule meant nothing more than a motion which is entirely free from the mischief of Art. 181. In the light of the above decision Sub- rule (3) has been subsequently amended. In view of the decision of the Full Bench it is impossible to hold that an application for the ascertainment of mesne profits and for the passing of a final decree comes tinder Art. 181 of the Indian Limitation Act and that it must be filed within three years from the date of the passing of the preliminary decree.