Duraisamy v. S. Simon — 1997 DIGILAW 1059 (MAD)

Judgment :- 1. This second appeal has been filed against the judgment and decree dated 15.7.1983 in AS. No.209 of 1982 on the file of the Subordinate Judge, Vellore, partly allowing the appeal against the order dated 6.10.1982 in I.A. No.2330 of 1978 in OS. No.330 of 1973 on the file of District Munsif, Sholinghur. 2. I.A. No.2330 of 1978 in O.S. No.330 of 1973 was filed by the plaintiff/ respondent in the second appeal under O.20, Rule 18 and Sec.151, C.P.C., for determination of income from the suit properties and for payment of the petitioners 1/5th share in the same. 3. In O.S. No.330 of 1973 a preliminary decree in respect of the items 1 to 4 and extent of 0.13 cents in item No.5, an extent of 32 cents in item No.6 and items 8 and 11 to 14 was passed on 7.3.1977. Final decree was passed on 30.9.1977 O.E.P. No.175 of 1977 was filed and the plaintiff took delivery of the share of the properties on 5.11.1977. Thereafter he filed the above I.A. No.2330 of 1978 in the same suit for accounts in respect of income from items 1 to 4, 13cents in item No.5 0-32 cents in item No.6 and item No.6 and items 8 and 11 to 144 and to pay l/5th share in such income to him from 19.6.1973 to 5.11.1977. 4. The respondent filed a counter stating that all proceedings under partition suit were completed. Hence he cannot file a petition. He must file a separate suit. The mesne profits claimed are amazingly very high. The trial court allowed the petition and passed final decree for payment of Rs.3,500 as mesne profits. As against the said decree, the defendant filed the Appeal No.209 of 1982. He also filed a I.A. No.162 of 1983, to receive documents filed along with the petition as additional evidences in the appeal. The petition for receiving the additional documents was dismissed. However, the appellate court allowed the appeal in part and thereby reduced the mesne profitis to Rs.2,385. Now the defendant has preferred the second appeal in this Court. The points urged before this Court are: 1. Whether the courts below are right in holding that the application under O.20, Rule 18, C.P.C. is maintainable after the disposal of the suit including final decree. 2. Now the defendant has preferred the second appeal in this Court. The points urged before this Court are: 1. Whether the courts below are right in holding that the application under O.20, Rule 18, C.P.C. is maintainable after the disposal of the suit including final decree. 2. Whether the courts below were correct in ascertain the mesne profits, when there is no direction in the preliminary decree or final decree for ascertaining the mesne profits. 5. The learned counsel for the appellant reiterated the above said two points. As regards the contention that there is no direction in the preliminary decree or final decree and hence the petition for ascertainment of mesne profits is not all maintainable, the lower appellate court has stated in paragraph 9 as follows: “Inasmuch as the preliminary decree passed in the above suit provides for an enquiry with regard to the mesne profits it is not open to the appellant/ 1st defendant to contend that the respondent/ plaintiff should file a separate suit for recovery of mesne profits.” As against this observation contained in the judgment of the appellant has not produced the certified copy of the preliminary decree. Further, he also did not press the said point when the aforesaid observation was brought to his notice. 6. The main contention urged by the counsel for the appellant is that the application for mesne profits should be filed before the final decree is passed and after passing of the final decree no independent application can be filed unless there is a permission or direction given to the said effect in the final decree. 7. As against the said contention, the learned counsel for the respondents senior counsel contend that more than one final decree can be passed in a partition suit and therefore even after the final decree was passed, the petition; for ascertainment of mesne profits can be filed. 8. In this case, the preliminary decree was passed on 73.1977, the final decree was passed on 30.9.1977. Thereafter O.E.P. No.1175 of 1977 was filed land the respondent took delivery of the properties allotted to his share on 5.11.1977. After taking delivery, the respondent filed the petition for rendering accounts of income from the properties allotted to him for the period from 19.6.1973 to 5.11.1977, during which period admittedly the appellant was in possession of the properties. Thereafter O.E.P. No.1175 of 1977 was filed land the respondent took delivery of the properties allotted to his share on 5.11.1977. After taking delivery, the respondent filed the petition for rendering accounts of income from the properties allotted to him for the period from 19.6.1973 to 5.11.1977, during which period admittedly the appellant was in possession of the properties. In this case, we have seen already that there is a provision in the preliminary decree for enquiry with regard to the mesne profits, as is stated in paragraph 9 of the lower appellate court Judgment. But without filing a petition before the final decree was passed the respondent has chosen to file petition for ascertainment of mesne profits only after the final decree was passed on 30.9.1977. According to the learned counsel for the respondent, only after taking delivery of possession, he will be in a position to have the mesne profits till the date of delivery of possession. Therefore, his client waited for delivery of possession and thereafter he filed petition for ascertainment of mesne profits. He cited number of decisions to show that the passing of the final decree does not preclude the parties in a partition suit from moving the court for passing another final decree after ascertainment of mesne profits. 1. Kemgamswamy v. Subbamma, 57 MLJ. 728: A.I.R. 1930 Mad. 30: I.L.R. 53 Mad. 838. 2. Basavayya v. Guravayya, (1951)2 MLJ. 178: A.I.R. 1951 Mad. 938: 64 L.W. 669: 1951 M.W.N. 576 (F.B.). 3. K.A. Kunhi v. Pudiya Purayil K.A. Kunhi v. Pudiya Purayil K.A. Kunhi v. Pudiya Purayil , A.I.R. 1956 Mad. 685: 1956 M.W.N. 655. 4. Krishnamma v. Latchumanaidu , A.I.R. 1958 A.P. 520. S.S.Reddiar 6. Lakshmi Ammal v. Subbaraj, (1975)1 MLJ. 137 : A.I.R. 1975 Mad. 208: 88 L.W. 78. 7. Veerappa Gounder v. Sengoda Gounder, (1975)1 MLJ. 53 . 8. M. Nageswara Sastry v. Narasimha Rao, (1983)2 A.L.R. 110. 9. In Kemgamswamy v. Subbamma, 57 MLJ. 728: A.I.R. 1930 Mad.30: I.L.R. 53 Mad. 838 wherein the petitioner claim mesne profits in a execution petition. Lakshmi Ammal v. Subbaraj, (1975)1 MLJ. 137 : A.I.R. 1975 Mad. 208: 88 L.W. 78. 7. Veerappa Gounder v. Sengoda Gounder, (1975)1 MLJ. 53 . 8. M. Nageswara Sastry v. Narasimha Rao, (1983)2 A.L.R. 110. 9. In Kemgamswamy v. Subbamma, 57 MLJ. 728: A.I.R. 1930 Mad.30: I.L.R. 53 Mad. 838 wherein the petitioner claim mesne profits in a execution petition. A Bench of this Court has taken the view that where an error in a decree application for enquiry into mesne profits is made by execution petition and if no further point was involved, such as limitation, it was open to the court to allow a mistake of this kind to be repaired and treat the petition as an application in the suit under O.20, Rule 12 of Civil Procedure Code. The above decision is not relevant to the case on hand. 10. In Basavayya v. Guravayya, (1951)2 MLJ. 178: A.I.R. 1951Mad. 938: 64 L.W. 669: 1951 M.W.N. 576 (F.B.) a Full Bench of our High Court has indicated the scope of O.20, Rules 12 and 18 of the Civil Procedure Code and the difference between them. The Full Bench has indicated that O.20, Rule 18 of the Code applies to a case where recovery of possession or ejectment of immovable property, while O.20, Rule 18 of the Code applies to cases where a suit for partition was filed by the tenants in common or by ;a member of a joint Hindu family. The learned Judges sum up their conclusion in paragraph 13 in the following terms: “We may now summarise our conclusions. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree: Jadunath v. Parameswar , I.L.R. (1940) 1 Cal. 255. In such a suit the court has not only to divide the common properties but has also to adjust the equities arising between the parties out of their relation to the common property the property to be divided. The preliminary decree decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered & decided before an equitable final partition can be effected. The preliminary decree decree determines the moieties of the respective parties and thereby furnishes the basis upon which the division of the property has to be made. There are other matters in addition to the moieties of the parties that have to be considered & decided before an equitable final partition can be effected. Among them are the realisation of common outstandings, the discharge of common liabilities, the distribution of the profits of the properties realised pending the suit, either in cash or by allotment of property of the requisite value, the grant of owelty, the provision of maintenance to parties entitled thereto, the allotment of lands on which improvements have been effected to the sharer who has improved them, the allotment of alienated lands to the share of the alienor and other similar matters. Even after the passing of the preliminary decree it is open to the court to give appropriate directions regarding all or any of these matters either suo motu or on the application of the parties. O.20, Rule 18, C.P.C. does not prohibit the Court from issuing such directions after the stage of a preliminary decree. It is open to the court in order to prevent multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties, to direct an enquiry into the profits received or realised by one or some of them during the pendency of the suit and to award the others their proper share of such profits under its final decree. 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.” In the said case, there was no prayer in the plaint for recovery of mesne profits and the preliminary decree did not direct an enquiry, but after the passing of the preliminary decree and before the passing of the final decree application was filed for enquiry into the mesne profits. What is stated in the Full Bench decision is that even in a case where there is no prayer for mesne profits in the plaint and no provision is made in the preliminary decree, an application can be filed after passing of the preliminary decree. What is stated in the Full Bench decision is that even in a case where there is no prayer for mesne profits in the plaint and no provision is made in the preliminary decree, an application can be filed after passing of the preliminary decree. However, it is made clear in the decision that the result of the enquiry into the mesne profits have to be incorporated in the final decree. 11. The Full Bench has also referred to the case reported in Ghulusum Bivi v. Ahmadsa Rowther , I.L.R. 42 Mad 296 and Kasi v. Ramanathan Chettiar, (1947)2 MLJ. 523 : 1947 M.W.N. 732 and observed in paragraph 6 as follows: “Ordinarily there would be one preliminary and one final decree but, as pointed out in Kasi v. Ramanathan Chettiar, (1947)2 MLJ. 523 : 1947 M. W.N. 732 there is nothing in the Civil Procedure Code which can be construed as a prohibition against the court, in proper case, passing more than one preliminary decree and one finalexecutable 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. A judicial determination of the amount of future profits has to be made with reference to any one of the three events specified in O.20, Rule 12. Sub-Rule (1) (c), whichever event first occurs. If a preliminary decree awarding possession contains a direction for enquiry into future mesne profits, the suit or that part of the suit relating to future mesne profits continues to be pending and the decree holder might move the court to hold an enquiry and pass a final decree awarding such profits without the necessity of filing an application.....” What is emphasised is that there must be something to indicate the continunce of the suit either in the preliminary decree or in the final decree. 12. In K.A. Kunhi v. Pudiya Purayil K.A. Kunhi v. Pudiya Purayil K.A. Kunhi v. Pudiya Purayil , A.I.R. 1956 Mad. 685: 1956 M.W.N. 685 a single Judge of our High Court has held that in a suit for recovery of possession decree was passed directing delivery of possession. But as regards mesne profits it was directed to be ascertained in execution petition. 685: 1956 M.W.N. 685 a single Judge of our High Court has held that in a suit for recovery of possession decree was passed directing delivery of possession. But as regards mesne profits it was directed to be ascertained in execution petition. The learned single Judge has held that though the order for ascertaining of mesne profits in execution is erroneous but not a nullity. The facts of the case are entirely different. Hence this decision is not useful. 13. Krishnamma v. Latchumanaidu , A.I.R. 1958 A.P. 520. Though the above Division Bench decision of the Andhra Pradesh High Court appears to be helpful to the respondent, the facts of the said case are entirely different. In the said case, in a partition suit, the party filed an application for ascertainment of mesne profits. The court without disposing of the said application makes a final decree in respect of other matters without granting any relief in mesne profits. Therefore, the Division Bench of the Andhra Pradesh High Court held that the legal position was that the entire subject matter of the suit was not finally disposed of and on that basis it was open to the court to make another supplemental final decree in regard to profits. It is also stated in the said case after referring to the Full Bench decision, it would have been the position, the appellant filed his application for ascertainment of profits before the Subordinate Judges Court which made the final decree. Again they make it very clear in the following terms: “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 courts decree is a decree in the suit.” ...... It is true that an appeal is a continuation of the suit and in a sense the appellate courts decree is a decree in the suit.” ...... 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 courts 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 pending the appeal, he did not seek or obtain from the appellate court, a direction for enquiry into future profits. In the circumstances, the decree of the lower court had become final and , in view of the Full Bench decision, it is no longer open to the appellant to claim profits in the suit. “ Apart from being helpful to the respondent, it helps the case of the appellant herein. 14. S.Reddiar v. Hasra Bibi S.Reddiar v. Hasra Bibi S.Reddiar v. Hasra Bibi , A.I.R. 1973 Mad. 237: 85 L.W. 699. In this case, the Full Bench decision reported in Basavayya v. Guruvayya Basavayya v. Guruvayya Basavayya v. Guruvayya , A.I.R. 1951 Mad. 938 is referred to and followed. It is held in paragraph 4 as follows: ”From this decision it clearly emerges that the rights based on the preliminary decree will have to be worked out by taking note of equities right upto the moment of the passing of the final decree which necessarily must embrace the question of the plaintiffs share of the income property till the passing of the final decree and this right to an account in respect of the income upto the moment of passing of the final decree is implicit and inherent in the right to a share in the property itself.” The said judgment also refers to the judgment reported in D. Sathanarayatia Murti v. D. Bhavanna D. Sathanarayatia Murti v. D. Bhavanna D. Sathanarayatia Murti v. D. Bhavanna , A.I.R. 1957 A P. 766. But there is no discussion as regards the final stage before which an application for mesne profits can be made before the court. 15. But there is no discussion as regards the final stage before which an application for mesne profits can be made before the court. 15. Lakshmi Ammal v. Subbaraj , A.I.R. 1975 Mad. 208. In this case, the question was whether the application for ascertaining of profits and allotment of shares was entertainable after the passing of the final decree. By relying on the above decision the counsel for the respondent contended that there can be more than one final decree and it is not correct to state that once a final decree and it is not correct to state that once a final decree is passed the court is powerless to pass another final decree. After referring to the Full Bench case reported in Basavayya v. Guravayya , A.I.R. 1951 Mad. 938 and other cases, the learned single Judge of this Court finally concludes as follows: “Therefore, even after the passing of the preliminary decree it is open to the court to give appropriate directions regarding all or any of the matters suo motu or on the application of the parties. The claim in such cases for the plaintiffs share of profits accruing from the lands pending suit is not properly speaking a claim for mesne profits and neither O.20, Rule 18, Civil Procedure Code prohibits the court from issuing directions regarding an enquiry into the mesne profits after the stage of preliminary decree.” In the present case, as already indicated, the appellant has in fact filed application for mesne profits before the final decree was passed. The court below did not consider that application while passing of the final decree, but later dismissed the same holding that the said application cannot be maintained after passing of the final decree. This is wholly incorrect. Therefore, the said case also cannot be relied upon for contending that after passing of the final decree an application altogether new one can be filed for ascertaining of mesne profits. 16. M.Nageswara Sastry v. Narasimha Rao M.Nageswara Sastry v. Narasimha Rao M.Nageswara Sastry v. Narasimha Rao , (1983)2 A.L.R. 11. In the above said case, a suit was filed for possession adoption also was challenged, ultimately a compromise decree was passed accepting the adoption and agreeing to divide the properties. 16. M.Nageswara Sastry v. Narasimha Rao M.Nageswara Sastry v. Narasimha Rao M.Nageswara Sastry v. Narasimha Rao , (1983)2 A.L.R. 11. In the above said case, a suit was filed for possession adoption also was challenged, ultimately a compromise decree was passed accepting the adoption and agreeing to divide the properties. In the com- promise, some properties were given to the adopted mother absolutely some for life with a vested remain der to the adopted son and some were to be divided after the court guardian of the adopted minor son was discharged. There was also a direction that the income from the lands was to be enjoyed equally by the first land second defendant fee, the adoptive mother and the adopted son. After the court guardian was removed, the adopted son could not divide the properties After compromise, the adopted son resisted the adoptive mother from taking some properties. The adoptive mother took delivery through court and thereafter she filed a petition for mesne profits against the adopted son as well as against the court guardian. In the said suit, the application for mesne profits filed by the adoptive mother was challenged as not maintainable contending that the compromise was in the nature of a final decree. The learned Judge after referring to the Full Bench decision reported in Basavayya v. Guravayya , A.I.R. 1951 Mad. 938 held as follows: “In principle there can therefore be no difference in applying the decision in , (1977)1 An.W.R. 130 to a preliminary decree where there is no specific direction for ascertaining profits in view of the , A.I.R. 1951 Mad. 938, as the same is implied in the partition decree. A petition for this purpose can be filed even after the passing of the final decree for division by metes and bounds.” The facts of the case shows that the compromise was like a preliminary decree. The learned single Judge also hold that the compromise decree and that petitions filed after the said decree was maintainable. In the said case, there is no mention about the passing of any final decree. Further, it is also not mentioned any where that the applications were filed after the passing of the final decree. Further, the lower court dismissed the applications treating the compromise arrangements as the final decree. In the said case, there is no mention about the passing of any final decree. Further, it is also not mentioned any where that the applications were filed after the passing of the final decree. Further, the lower court dismissed the applications treating the compromise arrangements as the final decree. In circumstances, the said case cannot be taken as log position down any legal position that an application for ascertaining of mesne profits can be filed even after the passing of the final decree, as we are faced with in the present case. 17. Murugan v. Chidambaram Pillai , A.I.R. 1991 Mad: 307. In the said case, there was a clause in the preliminary decree for partition for paying some amount by the plaintiff to the defendant for getting possession of his half share in the plaint schedule property, after the final decree was passed. When the plaintiff filed an application for passing of a final decree in terms of the preliminary decree, the question of limitation was raised. In the said case, Justice Nainar Sundaram, (as he then was) held that the application for the passing of a final decree in a suit is not an execution application’. The learned Judge also held that there was no. limitation for filing a final decree application and any number of final decree application could’be filed until the suit is finally disposed of. The learned Judge has held that mere passing of a preliminary decree, the suit is not disposed of. The application in question in the said case is for passing of a final decree, it is not an application after the passing of the final decree. The facts of the said case is entirely different and it is not helpful to the Respondent. 18. The question involved in the abovesaid case was whether the court was precluded from granting mesne profits in the final decree when the preliminary decree does not mention any specific direction regarding the same. In the said case the question as to whether an application for ascertaining of mesne profits can be filed after the passing of the final decree did not arise and there is no decision also in that aspect. 19. As we have seen above, from the Full Bench decision reported in Basavayya v. Guravayya , A.I.R. 1951 Mad. In the said case the question as to whether an application for ascertaining of mesne profits can be filed after the passing of the final decree did not arise and there is no decision also in that aspect. 19. As we have seen above, from the Full Bench decision reported in Basavayya v. Guravayya , A.I.R. 1951 Mad. 938 (F.B.) of our High Court and from the decision reported in Krishnamma v. Latehumanaidu Krishnamma v. Latehumanaidu Krishnamma v. Latehumanaidu , A.I.R. 1958 A.P. 520 of the Andhra Pradesh High Court, if a petition for ascertaining of mesne profits was not filed before the passing of the final decree and if there is no direction at the time of the passing of the final decree that something else should be done subsequent to the passing of the final decree. In a partition suit when the final decree is passed the suit gets finally disposed of. After such final disposal it is not open to any of the parties to file a petition for ascertaining of mesne profits. In this case, as observed earlier, there was a direction for ascertaining of mesne profits in the preliminary decree itself. The respondent has not taken advantage of the same, before the passing of the final decree. He has kept quiet and nothing prevented him from getting some direction at the time of the passing of the final decree in this regard. Atleast then, he will have a right to contend that the partition suit is continued till the direction is complied with. In the absence of any such opportunity or observations, it is not open to the respondent to contend that notwithstanding the passing of the final decree he could main- tain the petition for ascertaining of mesne profits. 20. The principle is that there must be a finality for every suit. Normally, partition suits are decided at two stages and there is also scope for passing of more than one final decree and issuing directions after the final decree is also passed, but unless there is an indication that at the time of passing of the final decree that something more has to be done after passing of the final, decree, the final stage is reached in the suit for partition when the final decree is passed. 21. 21. For the foregoing reasons, I am of the view that the second appeal has to be allowed. Accordingly, it is allowed, I.A. No.2330 of 1978 in O.S. No.330 of 1973 on the file of the District Munsifs Court, Sholinghur is dismissed. However, there will be no order as to costs.