Simma Krishnamma vs Nakka Latchumanaidu and others

K. Subba Rao, C.J.—This second appeal is directed against the decree and judgment of the Court of the Sub ordinate Judge, Srikakulam confirming that (sic) the District Munsif, Srikakulam, dismissing the petition filed by the appellant for ascertainment of mesne profits.

One Nakka Appala Naidu filed O. S. N 555 of 1942 in the Court of the District Muns: Srikakulam, for partition of the plaint schedu(sic) property against defendants 1 to 3 and obtaining a preliminary decree for partition on 9-9-1944. (sic) the plaint, there was no prayer for the asce(sic) tainment of future profits. That decree was mo(sic) (sic)fled in Second appeal on 13-10-1949. The prelin(sic) (sic)nary decree did not in terms give any direction for the ascertainment of future profits. The (sic)cree-holder transferred all his rights under the preliminary decree and also his claim for prof to the appellant, and the transfer was recognized by the Court. On a petition filed by the tra(sic) (sic)feree decree-holder i.e., the appellant, a final (sic)cree was passed on. 10-12-1951.

The judgment-debtors preferred an app (sic)against the final decree to the Subordin(sic) Judge''s Court, Srikakulam, being A. S. No. 51 1952. The Subordinate Judge''s Court modi(sic) the final decree on 5-2-1952. Pending the s(sic) appeal, the appellant filed I. A. No. 738 of (sic) in the Court of the District Munsif for ascerta(sic) (sic)ment of future profits. The filing of this ap(sic) cation was not brought to the notice of the(sic) ordinate Judge at the time of the disposal of appeal against the final decree and no direction were obtained from him in this behalf. The f(sic) decree as modified did not contain any direct: in regard to future profits. The District Mu(sic) and, on appeal, the learned Subordinate J(sic) had that, as the final decree was passed, present petition was not maintainable and, the ground dismissed it. Hence, the second peal.

The only question in the second ap(sic) is whether, in the aforesaid circumstances, a (sic)tion for the ascertainment of future profits was lie.

Learned counsel for the appellant tends that, in a partition suit, there can be i(sic) than one final decree, that the claim for m(sic) profits is part of the subject-matter of the that so long as the claim is not disposed o(sic) the Court, a subsidiary decree for ascerta(sic) sic)tture profits could be made and that, in the present case, an application for future profits as filed before the appeal against the final de(sic) was disposed of and, therefore, the Court (sic)d to ascertain mesne profits and to incorporate (sic)e same in a subsidiary decree.

Learned counsel for the respondents coun(sic)rs this argument thus: In view of the recent decision of the Supreme Court, a Court has no (sic)wer to give a direction for future profits and (sic)at, in any view, as the appellant did not ask for (sic)y direction in regard to that relief when the peal against the final decree was disposed of,; application filed after the final decree made the first Court was not maintainable. (5) A Full Bench of the Madras High Court (sic)d in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, , that an enquiry (sic) profits received or realised by one or the (sic)er of the parties during the pendency of the i (sic)for partition can be ordered by the Court (sic)ler as part of the preliminary decree itself, or, subsequently as a step towards the passing of final decree and, in either case, the result the enquiry has to be incorporated in the final (sic)ree. After considering the relevant provisions the decided cases on the subject, Viswanatha (sic)cri J., who delivered the judgment on behalf he Full Bench, summarised the law at p. 185 ILR): (at p. 943 of AIR) :

A partition suit in which a preliminary de(sic) has been passed is still a pending suit and rights of the parties have to be adjusted as the date of the final decree. In such a suit Court has not only to divide the common pro(sic) (sic)es but has also to adjust the equities arising (sic)een the parties out of their relation to the non property, the property to be divided The miliary decree determines the moieties of respective parties and thereby furnishes the upon which the division of the property has (sic) made. There are other matters in addition (sic)e moieties of the parties that have to be con(sic) (sic)sd and decided before an equitable final (sic)tion can be effected.

Among them are the realisation of common (sic)andings, the discharge of common liabilities, distribution of the profits of the properties (sic)ed pending the suit, either in cash or by (sic)lent of property of the requisite value, (sic)rant of owelty, the provision of main(sic) (sic)ce to parties entitled thereto, the allotment (sic)ds on which improvements have been effect(sic) the sharer who has improved them, the (sic)ment of alienated lands to the share of the (sic)r and other similar matters. Even after (sic)assing of the preliminary decree it is open (sic)j Court to give appropriate directions re-(sic) (sic)ig all or any of these matters either suo (sic)or on the application of the parties.

Order 20, R 18, CPC does (sic)ohibit the Court from issuing such direc(sic) after the stage of a preliminary decree, (sic)pen to the Court in order to prevent multi of litigation and to do complete justice and (sic)an equal division of all the common assets (sic)roperties among the parties, to direct an into the profits received or realised by some of them during the pendency of the (sic)d to award the others their proper share (sic)a profits under its final decree. This en-(sic)an be ordered either* as part of the preli(sic)i decree itself or, subsequently as a step the passing of the final decree, and In either case the result of the enquiry has to be incorporated in the final decree." We have extracted the summary in extenso as it clearly and succinctly enunciates the principlea(sic) (sic)geverning the ascertainment of profits received, or realised by one or other of the parties during, the pendency of the suit for partition. The judgment, being that of a Full Bench of the Madras High Court delivered before 5-7-4954 is binding on us. But it is said that the correctness of this decision is open to doubt in view of the subsequent decision of the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, ). This argument was considered by another Division Bench of this Court of which one-of us was a member in Atchamma v. Rami Reddi ILR 1957 Ahdh. Pra. 52: (AIR 1958 Andh. Pra 517) (C). After considering the facts of that case and the relevant passage in- that judgment the Division Bench observed at p. 56 (of ILR): (at p. 519 of AIR) :

It is not clear from the aforesaid observations that the Supreme Court was dealing with, the question of future mesne profits. That apart their Lordships did not purport to lay down as a proposition of law that a Court had no jurisdiction to award future mesne profits if There was no demand for the same in the plaint. As the "Full Bench of the Madras High Court pointed out, the relief of future mesne profits Is a discretionary one and it is open to the Court to refuse to exercise the discretion in suitable cases: We cannot, therefore, hold that the Supreme Court in the aforesaid decision held that a Court has no jurisdiction to award.future mesne profits unless there was a prayer for that relief in the-plaint. In our view, the Full Bench decision still holds the field and no part of the judgment has been either expressly or impliedly overruled by the judgment of the Supreme Court.

We entirely agree with the aforesaid observations. That apart, the observations made by the: Supreme Court may have relevance to the question of the power of a Court to give a direction under O. 20, R. 12 when there was no prayer to the plaint for the said relief. But, they have none hi the context of the power of the Court to give directions for the ascertainment of profits after the preliminary decree in the partition suit was made. The Full Bench decision of the Madras High court, therefore, still holds the field.

Even so, it is contended by the respondents that an order for ascertaining profits-should be made before the final decree is passed and incorporated therein, and if no such relief is given in the. final decree, it is not open to the Court to ascertain the profits thereafter. For this proposition, the last sentence of the same passage from the Full Bench Judgment on which the appellant has relied upon is invoked, namely:

This enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree and in either case the result of the enquiry has to be incorporated in the final decree.

The said observations must be read along with, the other observations made by the Full Bench. The following observations are found at p. 178 (of ILR): (at p. 940 of AIR) :"Ordinarily, there will be one preliminary and one final decree but, as pointed out in Kas(sic) v. Ramanatham Chettiar, 1947-2 Mad LJ 523 (D), there is nothing in the CPC which can be construed as a prohibition against the Court, in a proper case, passing more than one preliminary decree and one final executable decree in a suit. The relevant provisions of the Code and the earlier rulings of this and the other High Courts are reviewed in the Judgment of Patanjali Sastri J. with which we are in respectful agreement.

The Pull Bench recognised that there was nothing in the CPC which can be construed as a prohibition against the Court in a proper case passing more than one preliminary decree and one final executable decree in a suit.

In a proper case, therefore, where a supplemental final decree can be made, the Full Bench does not preclude the Court from ascertaining the profits and including the same in the supple mental decree. If a party to a partition suit files an application for the ascertainment of future profits and the Court, without disposing of that application, makes a final decree in respect of the other matters and without incorporating any relief for profits, the legal position is that the entire subject-matter of the suit has not been finally disposed of and, on that basis, it may be open to the Court to make another supplemental final decree in regard to profits. That would have been the position if the appellant filed his application for ascertainment of profits before the Subordinate Judge''s Court made the final decree.

But, in the present case, the application for ascertainment of profits was not made pending the final disposal of the suit but was made only after the final decree was made in the suit before the disposal of the appeal. The learned counsel for the appellant contends that an appeal is only a continuation of a suit and, therefore as he filed the application before the appeal was disposed of, to that extent the dispute as regards the subject-matter of the suit, namely, profits was still outstanding and, therefore, the Court should have made a decree subsequently in respect of profits. It is true that an appeal is a continuation of the suit and in a sense the appellate Court''s decree is a decree in the suit.

See Gurraju v. Venkateswara Rao, 30 Mad LJ 379 (AIR 1917 Mad 597) (E), It may also be that, in extraordinary cases, an appellate Court can make an order to meet the ends of justice in favour of all or any of the respondents or parties, although such respondents or parties may not have filed an appeal and even though the appeal is as to a part only of the decree. See O. XLI, R. 33 and O. XLI, R. 4 C.P.C. But, notwithstanding the general power given to an appellate Court, there is a finality attached- to the first Court''s decree subject to the result of the appeal. So long as the general power is not exercised by the appellate Court, the appeal is confined only to that part of the subject-matter of the appeal and in respect of the parties to the appeal. In other respect i.e., in respect of that part (sic) t(sic) decree not appealed against, the rights of the parties are finally decided by the decree of the first Court.

A party aggrieved by any part of the decree has to file an appeal paying the requisite Court fee questioning the correctness of the decree that went against him or he may invoke the Court''s extraordinary power at the time of the passing of the appellate decree to give him relief in his favour in respect of the matter not appealed against. In the present case, the decree was not questioned on the ground that it did not incorporate any relief in regard to future profits. Though the appellant filed an application'' pend ing the appeal, he did not seek or obtain from the appellate Court, a direction for enquiry int(sic) future profits. In the circumstances, the decree of the lower Court had become final and. in vie(sic) of the Pull Bench decision, it is no longer ope(sic) to the appellant to claim profits in the suit.

The same view was expressed by a Division Bench of this Court in ILR 1957 Andh. Pi(sic) 52 : (AIR 1958 Andh Pra 517 (C) though, that case, the question related to an enquiry under O. 20, R. 12, C. P. C. They pending an appeal to the Supreme Cou(sic) the petitioner filed in the trial Court a petition under O. 20, R. 12, C. P. C, for assessment a: for recovery of future mesne profits due to from date of the plaint till the date on whi(sic) she took possession. Before the dismissal of the appeal to the Supreme Court, the question (sic)mesne profits was not raised before that Co(sic) and no directions in respect of that relief w(sic) given in the judgment of the Supreme Court The petition was dismissed by the trial Courtthe ground that it was not maintainable. Adv(sic) ing to the argument similar to that advancedfore us, the Division Bench observed at p. 58 ILR) : (at p. 520 of AIR)

But in our view the fact that ''the Suprt(sic) Court appeal was pending would not help petitioner as she did not bring the fact of existence of this application to the notice of Supreme Court and did not seek to get inco(sic): rated in the decree any directions in regard the said relief by the Supreme Court. The judgement of the Supreme Court had become final the petitioner cannot now seek to reopen it.

The same observations apply mutatis muta(sic) to the present case. The suit had been filed disposed of and it ended in a final decree, appeal against that final decree was confine a relief unconnected with profits. No direct were given in the appellate decree in regan(sic) profits,. In the circumstances, following the Bench decision we must hold that the applies is not maintainable.

In the result, the appeal fails and is missed with costs.