(Mattapalli) Venkataratnam and Another vs Veppu Sitaramayya

Phillips, J.—The appellants in this case brought a suit for redemption and a decree was passed in 1917. The appeal against the decree was

decided on 22nd February 1918. In that judgment the appellate Court passed the following order: ""In a redemption suit there should be a final and

complete adjustment of all the accounts between the parties up to the time of actual redemption and no claim for mesne profits can be kept

outstanding or can be enforced by the mortgagor subsequently. Account should, therefore, be taken down to the date to be fixed in the decree for

redemption."" A fresh enquiry was, therefore, held by the District Munsif, and on 5th December 1918 he passed a decree finding that the mortgage

amount deposited was in excess of the amount due to the mortgagee and that it was, therefore, unnecessary to pass decree for payment of the

amount and possession to be given on payment. He accordingly gave a decree to the plaintiff for possession of the suit land and further held that

the question of mesne profits was left undecided. Both the lower Courts have held that this is in itself a final decree and that this question of mesne

profits not having been decided the plaintiff is precluded from asking the Court to ascertain what those profits are. Ordinarily in a redemption suit

there should be a preliminary decree, followed by a final decree. It seems to me that this decree is in fact partly final and partly preliminary. In so

far as it is a decree for possession it is final, and in so far as it leaves the question of mesne profits undecided and expressly states that it was so

left, it is preliminary to an ascertainment of those mesne profits. The plaintiff put in an application which purports to be under O .21, Rule 11, for

delivery of possession and for attachment of moveables under Order 21, Rule 35 and Order 21, Rule 43 and added a prayer to ascertain the

mesne profits from the date of suit. This petition was put in on 3rd November 1919 and it came before a different Munsif. He held that it was not

open to the plaintiff to ask for mesne profits and, therefore, dismissed the petition. On appeal to the Subordinate Judge, his order was confirmed. If

the Munsif intended by his order to have the ascertainment of mesne profits adjourned to a future date, these orders of dismissal are clearly wrong.

The language of the decree saying that the question of mesne profits is left undecided is somewhat unusual and it is contended for the respondents

that it must be taken to mean that the relief was refused and that no effect can be given to the order leaving the mesne profits unascertained. When

we consider that the appellate judgment directly ordered the Munsif to take an account and ascertain the mesne profits and has given as a ground

therefor, that the mortgagor would have no right to obtain any relief in a subsequent suit, it is hardly conceivable that the Munsif would have acted

exactly contrary to the orders given by the appellate Court, even though he might have been personally of the opinion that that order was wrong.

That fact has to be taken into account in considering the suggestion of the respondents. On the other hand if the interpretation put upon the decree

by the appellant is correct the Munsif would not have been guilty of this disrespect of the appellate Court''s order. Although this order is not strictly

in accordance with the form that it should have taken, I think we must look to the circumstances which led up the decree and interpret it

accordingly. I think it is clear that it was interpreted as a preliminary decree by the appellants when they put in their subsequent application. No

doubt their prayer for ascertainment of mesne profits should have been put in under Order 34, but I do not think that the omission to specify the

provision of law is a serious objection. If necessary, an amendment of the petition might have been ordered to bring it into conformity with strict

procedure but the omission to specify Order 34, cannot deprive the plaintiff of his rights.

A large number of authorities have been cited before me in this respect but I do not think it is necessary to deal with them here because of the

interpretation that I put upon this decree. I may refer to a Privy Council case Muhammad Abdul Majid v. Muhammad Abdul Aziz [1897] 19 All.

155 in which the question of mesne profits was reserved when the decree was passed and although there was final disposal of one portion of the

subject-matter of the suit, it was held that it was open to the Court to subsequently ascertain the mesne profits and pass further decree. It seems to

me that that is in accordance with what I propose to do now. I, therefore, allow this appeal and remand the Execution Petition No. 529 of 1919 to

the District Munsif for disposal according to law. The respondents will pay the appellant''s costs in A.A.A.O. No. 36 of 1922 throughout. In this

view the suit filed by the plaintiff to recover the mesne profits is not maintainable and, therefore, the second appeal must be dismissed. Under the

circumstances I award no costs.