M. Janakirama Iyer vs Meenakshiammal

S. Swamikkannu, J.—This civil revision petition is filed against the order passed in I.A. No. 877 of 1950 in I.A. No. 234 of 1980 in O.S.

No. 21 of 1963 on the file of the Court of the learned Subordinate Judge, Mayuram, The application was filed by the plaintiff under Order 7, Rule

11 and Section 151, Civil Procedure Code, to enquire as to whether I.A. No. 234 of 1980 filed under Order 20, Rule 12, Civil Procedure Code,

is barred by time. The lower Court has dealt with the matter by raising a point whether the claim of mesne profits is barred by time and came to the

conclusion that Article 137 of the Limitation Act, would apply to a case of this type, since the plaintiff had taken possession of all the properties

covered in the suit and as the application for mesne profits had not been filed within a period of three years from the date when it accrues and that

the application was barred by time. Aggrieved by the above decision of the lower Court the second plaintiff has come forward with this civil

revision petition, inter alia contending that the lower Court had erred in holding that the petition filed by the respondent herein to appoint a

Commissioner to ascertain the mesne profits is barred by time. It is further contended by the learned Counsel for the revision petitioner that in view

of the fact that in the preliminary decree relegating the ascertainment of the mesne profits by means of a separate application, the learned

Subordinate Judge ought to have held that the present application is not an independent one but only a continuation of the suit Mr. R. Srinivasan,

learned Counsel for the revision petitioner, submitted that the lower Court failed to see that when no final decree has been passed the question of

limitation would not arise at all. It is further submitted on behalf of the revision petitioner by Mr. R. Srinivasan, learned Counsel for the revision

petitioner, that the learned Subordinate Judge fell into error in taking the date on which the plaintiff took delivery of possession of the property viz.,

30th March, 1975, as the date on which the right to apply for the mesne profits accrued. It is also pointed out on behalf of the revision petitioner

that the Court below erred in applying Article 137 of the Limitation Act, and holding that the petition was clearly barred by time. The view of the

lower Court1 that the limitation starts on the next day as and when the property is taken possession is, according to the revision petitioner, clearly

erroneous. It is further pointed out by the learned Counsel for the revision petitioner Mr. R. Srinivasan on behalf of the revision petitioner that the

decision reported in, Ramasubramanya Pattar Vs. Karimbil Pati and Others, and in Jainalabuddin v. K.S.A. Abdul Kadar and Ors. (1978) 91

L.W. 478, are clearly to the effect that the claim of the petitioner is not barred by time. In other words it is submitted that the lower Court

committed an error in thinking that the petition ought to have been filed within three years from the date when the plaintiff took possession of the

properties. It is also submitted that the order under revision becomes revisable by virtue of Section 115, Civil Procedure Code, since the lower

Court ought to have that the petition was not barred by time.

On the other hand Mr. R. Balachander, learned Counsel for the respondent, contends that the lower Court had exercised its power properly

and there is no excess jurisdiction nor is there any error committed by it inasmuch as it has followed the principle embedded in the decisions

reported in Dakshinamurthi Pillai Vs. Vedamurthy Mudaliar and Others, and in K.R. Muthu Alagappa Chettiar Vs. Ahmed Ibrahim Alim Saheb, .

As a matter of fact the lower Court in the order under revision itself has enlightened, in that it had referred to the decisions reported in

Ramasubramanya Pattar Vs. Karimbil Pati and Others, and in Jainalabuddin v. K.S.A. Abdul Kader and Ors. (1978) 91 L.W. 478, and has

observed that under Article 137 the limitation is three years for any application for which no limitation is prescribed and that the starting point for

the three years'' limitation period is the date when the right to apply accrues. In the instant case, according to the lower Court, the right to apply for

mesne profits accrued to the plaintiff even on 30th March, 1975, itself because the properties had been taken delivery of possession and there was

no pending litigation between the parties even after 20th March, 1975, so as to infer that the suit has not been finally disposed of between the

parties. When the respondent had taken possession of the properties and he has failed to move the Court within a period of three years, claiming

mesne profits, it can be well said that the application in I.A. No. 234 of 1980 is clearly barred by time. In the circumstances it was held by the

lower Court in the order under revision that there is absolutely no basis for the contention of the plaintiff that the application for mesne profits is

only a reminder and the suit is still deemed to be pending. Therefore the lower Court repelled the contention that was raised on behalf of the

plaintiff and held that Article 137 of the Limitation Act, would apply to a case of this type since the plaintiff had taken possession of all the

properties covered in the suit and as the application for mesne profits had not been filed within a period of three years from the date when it

accrues due, the application was barred by time. Hence the application in I.A. No. 877 of 1980 filed by the defendant under Order 7, Rule 11 and

Section 151, Civil Procedure Code, to enquire as to whether I.A. No. 234 of 1980 filed under Order 20, Rule 12, Civil Procedure Code, is

barred by time was allowed.

Mr. R. Srinivasan, learned Counsel for the revision petitioner, refers to the decision re ported in Jainalabuddin v. K.S.A. Abdul Kader and Ors.

(1978) 91 L.W. 478, where the following observation has been made by Balasubrahmanyan, J:

This decision, however, is not apposite to the present case. There are no two suits here, but only one, and in that suit the plaintiffs were quite within

their rights in asking for a decree for ""future"" mesne profits from the date of the suit. It is not suggested that the suit in ejectment itself is barred by

limitation. This being so, it is difficult to see how Article 51 of the schedule to the Limitation Act, 1963 or any article at all can have relevance to the

present case. It may be observed that so long as the final decree for mesne profits is not passed, the suit is still pending and alive. There seem to be

two views prevalent in this country as to whether the provisions pf the Limitation Act prescribing periods of limitation for applications applies to the

application for mesne profits in suits pursuant to the directions in the preliminary decree. One view is that the statute applies. The better view seems

to be that there is no such thing as limitation for such applications. For instance, they cannot be regarded as execution petitions, for the suits in

which they are filed would still be pending at the time they are filed. Reference may be made in this connection to the following cases :

Ramasubramania Pathar v. Karambil Pati (1978) 91 L.W. 478; Ramasubramanya Pattar Vs. Karimbil Pati and Others, ; Chandrakantam v.

Chandramouliswara Prasad I.L.R.(1923) Mad. 46. Although they are not direct decisions, it seems to me that they do point to the view I have

earlier expressed. Even otherwise, if any at all of the Schedule to the Limitation Act, 1963, is capable of application to a case of this kind it can

only be the residuary Article 137 falling under the Third Division in the Schedule relating to Applications, for there is no other specific article in that

division which deals with this subject-matter. Under Article 137, the limitation is three years for any application for which no limitation is prescribed

under any other article in Part I of the Third Division in the schedule. The starting point for the three-year-limitation period under Article 137 is the

date when the right to apply accrues. In this case, the right to apply for mesne profits accrued to the plaintiff under the preliminary decree, but that

decree was taken in appeal by the defendant and the appeal was dismissed only on 15th June, 1972. This application for mesne profits was

actually filed in this case on 8th August, 1972. In the circumstances, even on the footing that any question of limitation at all arises as respects an

application for mesne profits in a suit pursuant to a preliminary decree therein, I must hold that the application in this case has been filed within time.

It is relevant to note that the very same, decision is referred to by the lower Court and it came to the conclusion that under Article 137 of the

Limitation Act, the limitation is three years for any application for which no limitation is prescribed. The starting point for the three years limitation

period is the date when the right to apply accrues and that in the instant case the right to apply for mesne profits accrued to the plaintiff even on

30th March, 1975, itself because of the properties had been taken delivery of possession. It is common ground that the application has been filed

on 11th December, 1979, and it is also common ground that the Immovable properties in the form of house had been taken delivery on 29th

March, 1975. Therefore the lower Court is correct in having observed that there was no material to infer that the suit was not finally disposed of

between the parties. When the plaintiff had taken possession of the properties and he had failed to move within the period of three years, claiming

mesne profits, the lower Court is correct in having observed that the application in I.A. No. 877 of 1980 was clearly barred by time. Therefore,

the contention that was raised on behalf of the plaintiff that the application for mesne profits is only a reminder and that the suit still deemed to be

pending was rightly repelled and held to be unsustainable and untenable by the lower Court. There is nothing in this order to be revised or dealt

with under the provisions of Section 115, Civil Procedure Code. There are no merits in this civil revison petition and is hereby dismissed.

However, there will be no order as to costs.