M. Rajangam Ayyar vs Natesa Chettiar

This second appeal is against the judgment on appeal of the learned District Judge of Kumbakonam in A. S. 69 of 1962 against the order of the

District Munsif, Valangiman at Kumbakonam in I. A. 1171 of 1961 in O. S. No. 35 of 1953. The plaintiff in O. S. 35 of 1953 is the appellant. O.

S. 35 of 1953 was a suit for partition and possession of the plaintiff''s share of the suit properties. Along with the prayer for partition and

possession of his share, the plaintiff also prayed for mesne profits. The preliminary decree provided not merely for partition and possession of the

plaintiff''s share but also for the ascertainment of mesne profits and it being provided for in the final decree. It appears that while the petition for

passing the final decree was pending, the appellant filed an application for ascertainment of mesne profits. The application was returned a number

of times by the court raising the question as to how a petition for ascertainment of mesne profits could be filed before the final decree for allotting

the plaintiff''s share had been passed. Though this does not appear either in the judgment of the trial court or in the judgment of the appellate court,

I have been shown a certified copy of the order in the earlier application filed by the appellant. But, unfortunately the appellant did not re-present

the earlier petition but filed a petition out of which the present appeal arises for ascertainment of mesne profits.

The trial court held that the mesne profits could be ascertained. The appellate court took the view that the mesne profits not having been

ascertained and provided for in the final decree, it is not possible to do so in this application. The lower appellate court relied upon two decisions

one reported in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, and another in Arunachala Mudali and Another Vs.

Maragathammal and Another, . It appears to me that neither of these decisions what the Full Bench decided was that in a suit for partition even

though there is no prayer in the plaint as regards the claim for mesne profits it is still open to the court to hold an enquiry regarding mesne profits

during the pendency of the suit, that is before a final decree is passed. That was a case like the present one which falls under Order 20 Rule 18.

We are not concerned however in the present case with the question of the plaintiff not having prayed for mesne profits in the plaint but coming

later with an application for ascertainment of mesne profits. We are concerned with a case where the preliminary decree itself has provided for

ascertainment of mesne profits. The decision in Arunachala Mudali and Another Vs. Maragathammal and Another, was in a case which fell under

O. 20 Rule 12 C.P.C. and what this court decided there was that in such a case where there was no prayer in the plaint for mesne profits it was

not open to the plaintiff subsequently to ask for ascertainment of mesne profits and for that purpose the preliminary decree being reopened and

mesne profits being provided for. It is well settled that there can be more than one preliminary and more than one final decree. It was observed by

a Bench of this court in the decision in Kasi alias Alagappa Chettiar and Others Vs. Rm.A.RM.V. Ramanathan Chettiar alias Srinivasan Chettiar

through his next Friend, AV.Pl.Ct. Ramanathan Chettiar and Another, , as follows--

If it be a misnomer to call a decree ''final'' and to say that it could be followed by another final decree in the suit, it is a misnomer sanctioned by the

legislature, for the provision that a decree ''may be partly preliminary and partly final'' implies that further proceedings have to be taken to be

followed by another final decree completely disposing of the suit. No. doubt ordinarily there would be one preliminary decree followed by one final

decree in suits of the kind mentioned in Order 20 Rules 12 to 18. but no inference can, in our opinion, be drawn from the general language used

that the Code does not contemplate and the court has in consequence no power even in special cases involving a multiplicity of claims or other

complications to pass more than one preliminary decree or one final decree.

As was held in the Full Bench decision above referred to, unless the plaintiff''s prayer for mesne profits had been specifically considered and

refused, it was open to the court to entertain a subsequent application for mesne profits after the passing of the preliminary decree and before the

passing of the final decree. I should say that in this case where the preliminary decree provides for ascertainment of mesne profits and the final

decree does not provide for mesne profits, it would be open to this court to pass another final decree after ascertainment of mesne profits. A suit

cannot be said to have been finally disposed of until all the prayers in the plaint have either been granted or specifically refused. In the present case

the preliminary decree having provided for ascertainment of mesne profits and its being not having provided for mesne profits it is open to the court

to ascertain it and pass another final decree. There is nothing to prevent such a course being adopted by the court.

I cannot accept the argument on behalf of the respondent that because the final decree already passed does not provide for mesne profits the

plaintiff''s prayer for mesne profits should be deemed to have been refused. That matter was never under consideration at the stage of the earlier

final decree. The view of the lower appellate court is therefore wrong and the order of the trial court will be restored. There being no dispute that

the quantum of mesne profits provided for by the appellate court is not correct the order of the trial court will be restored. The respondent will pay

the appellant''s costs. Leave granted.

Appeal allowed.