P.N. Appukuttan vs K.T. Janardhanan and another

M.M. Pareed Pillay, J.—Revision petitioner is the 8th respondent. A preliminary decree was passed on 5-10-1953 in a suit for partition. Under the decree respondents 1 and 2 and their deceased father are found entitled to 1/3 share each over the properties. Application for passing of the final decree was filed only in 1973 and final decree was passed on 8-7-1977. First respondent was put in possession of his share of the properties pursuant to the order in E. P. 107 of 1977. Under the final decree the deceased father was alone made liable for mesne profits to the first respondent. Father died and. the revision petitioner was impleaded as his legal representative as a legatee under a will. Final decree provided for payment of mesne profits from 17-9-1951 onwards till delivery of possession at the rate of 534 paras of paddy per annum. Contention of the revision petitioner is that under Order XX Rule 12(1)(c)(iii) first respondent is entitled only to mesne profits for three years and no period beyond that. It is contended. that even if the final decree was not challenged in appeal or corrected position would be the same as Order XX Rule 12 (1)(c)(iii) provides that mesne profits could be granted only for three years and so the first respondent is not entitled to claim any amount beyond the period of three years from the date of decree.

The short point that arises for consideration is as to whether in a partition suit a sharer is entitled to claim his share of profits for more than three years after the decree. Contention of the respondents is that the petitioner cannot claim share of profits for a period more than three years in view of Order XX Rule 12. Order XX Rule 12 enables the Court to pass a decree for past and future mesne profits in a suit for recovery of possession of immovable property. As the partition suit is not one coming under the category of a suit for recovery of possession of immovable property from a trespasser or a person in wrongful possession and as in the partition suit the claim is for share of profits from a sharer in possession, Order XX Rule 12 has no application. When a partition suit is decreed entitling a sharer to share of property and share of profits from a person in possession of the property, it cannot be held that share of profits cannot be claimed for more than three years on the analogy that mesne profits could be claimed only for three years from the date of decree. The word "mesne profits" defined in Section 2(12) C.P.C. means those profits which a person in wrongful possession of such property either actually received or might have received with ordinary diligence. So far as a sharer in partition suit is concerned, it cannot be Said that he was wrongfully in possession of the property. Mesne profit is used as a loose term even to take in profits due to a sharer out of possession from the one who has possession. Entitlement of a sharer to the share of profits cannot be limited to three years as in the case of mesne profits due to a decree holder who is entitled to recovery of possession and mesne profits under Order XX Rule 12.

In this case final decree was passed allowing mesne profits from 17-9-1951 till delivery of possession. As it has become final, contention of the revision petitioner that the first respondent is not entitled to claim shares, of profit for more than three years is not tenable.

It is next contended by the revision petitioner that it was wrong on the part of the Sub Judge to have ordered to be sold the entire properties (18 items) at the same time. Counsel for the revision petitioner relied on Ambati Narasayya Vs. M. Subba Rao and another, where the Supreme Court held thus:

There is a duty cast Upon the Court under Order 21 Rule 64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored.

The executing Court is directed to sell the property in accordance with the Supreme Court decision.

Rate of paddy applicable is left open to be decided by the executing Court afresh after affording both parties opportunities to adduce evidence. The order of the Court-below is set aside and the matter is remitted for denovo consideration after hearing both sides and in accordance with law.

The Civil Revision Petition is partly allowed as stated above. No costs.