Judgement Pronounced by S. Jagadeesan, J.
1. The defendants 1, 5 and 6 in O.S. No.152 of 1960 on the file of the District Munsif, Villupuram are the appellants herein. The respondents herein had filed the said suit, claiming partition of 2/3rd share. A preliminary decree was passed by the trial court on 31.3.1962. Subsequently a final decree was also passed on 15.4.1964 in I.A.No.828 of 1962. The respondents took possession of the properties on 26.12.1974. So far as items 4 to 8, 15, 17, 25 and 26 of the plaint schedule properties are concerned, because of the pendency of the second appeal which was disposed of in the year 1967, the final decree was passed separately on 15.7.1976 in LA. No. 542 of 1969. The respondents took possession of their share in the above said items 22.9.1976.
2. After taking delivery, the respondents filed an application I.A.3183 of1982 for ascertainment of the mesne profits from 25.11.1959 to 22.9.1976. The trial court granted a decree for mesne profits subject to payment of court fees. Aggrieved by the same, the appellants filed an appeal A.S. No. 70 of1983 on the file of the Sub-Court, Villupuram. In and by his judgment dated 31.3.1984 the learned Subordinate Judge confirmed the decision of the trial court. Hence the present second appeal has been filed.
3. The following substantial question of law was formulated at the timeof admission of the second appeal:
'Whether the finding of the lower appellate court on the question of maintainability is correct in view of the decision of the Supreme Court reported in : 3SCR590
4. The case was heard by K. Sampath, J. during the final disposal... Before the learned single Judge, the counsel for the appellants contended that the trial court did not provide for the mesne profits and therefore the respondents would not entitled to claim mesne profits. Even otherwise, at the time when the final decree was passed, the application for mesne profits had. not been made and in as much as there could not be more than one final decree. The claim of the respondents could have been negatived by the courts below. For this proposition, he had relied upon the judgment of this court reported in Mohamed Habibullah v. Rahimath Beevi : (1980)1MLJ436 .
5. The learned counsel for the respondents seems to have contended that the respondents had claimed only future mesne profits and as such subsequent to the final decree it is open to them to seek for such relief on the basis of the decision of the Supreme Court reported in R.S. Maddanappa (Deceased) By L.Rs. v. Chandramma and another, : 3SCR283 .
6. After referring to a number of judgments cited by both the counsel, the learned single Judge has entertained a doubt as to whether subsequent to the passing of the final decree, the mesne profits can be asked for and referred the following question for the Full Bench to answer:
'Whether in a partition action, the lis got terminated for all purposes even with regard to future profits, not provided for in the final decree in the absence of any indication therein that something more remained to be done.'
7. Though the learned Judge referred to number of judgments of the learned single Judges of this Court, we are of the opinion that it is unnecessary to refer all the cases, in view of the fact that the question referred had already been discussed by a Full Bench of this court reported in Babburu Basavayya v. Babburu Guravayya, : AIR1951Mad938 as well as the Supreme Court in the judgment reported in R.S. Maddanappa (Deceased) By L.Rs v. Chandramma and another, : 3SCR283 .
8. In the present case, though the preliminary decree provided for enquiry into the mesne profits, no such enquiry was held and the final decree came to be passed. Pursuant to which the respondents also took possession of the properties on 22.9.1976. After nearly six years subsequent to the taking delivery of possession the respondents have filed the application I.A. No. 3183 of 1982 for ascertainment of mesne profits.
9. Hence the question is whether a decree for mesne profits can be granted?
10. We will refer the Full Bench judgment of this court in BabburuBasavayya v. Babburu Guravayya, : AIR1951Mad938 wherein the learnedJudges have held whether the plaint contained or not a claim for future profitsthe court has the power to grant them when the legislature has expresslyempowered the court to grant relief for future mesne profits, that is to say, inrespect of a cause of action arising subsequent to the suit, there is no reason tocircumscribe this power by importing a qualification that there must have beena specific prayer in the plaint for the recovery of such unascertainable andunpredictable profits and as such future mesne profits could be awarded aspart of general relief. Having said so, the learned Judges further entered intothe discussion on the question as to whether this power to direct an enquiryinto future mesne profits can be exercised only at the stage when a preliminarydecree for possession is passed or at a later stage of the suit. The learnedJudges have held as follows:
'Ordinarily, there will be one preliminary and one final decree but. as pointed out in Kasi v. Ramanathan Chettiar, : (1947)2MLJ523 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 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. Ajudicial determination of the amount of future profits has to be made with reference to any one of the three events specified in Order 20, Rule 12, sub-rule (I) (C), whichever event first occurs. If a preliminary decree awarding possession contains a direction for enquiry into future mesne profits, the suit or that pan 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 within the period prescribed by Articles 181 of the Limitation Act. This is the effect of the decision in Ramasubramanya Pattar v. Karimbal Pati, ILR 1940 Mad. 372 and the Madras amendment of Order 20, Rule 3. If, to use the language of Ghulusam Bivi v. Ahamadsa Rowther, ILR 1918 Mad. 296 the preliminary decree 'intentionally omits', that is to say, refuses to direct an enquiry into future mesne profits, that decision will, subject to the result of any appeal, be binding, on the parties in all the subsequent stage of the suit and no application can thereafter be made in the course of the suit for an enquiry into such profits. Whereas a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit which, for one reason or another continues to be, pending, there is nothing in the Civil Procedure Code prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry. The court may, in the exercise of its discretion, refuse an enquiry leaving the decree-holder to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree. Unlike Order 20, Rule 13 and 16 and Order 34, Rules 2, 4, and 8. Civil Procedure Code, Order 20, Rule 12, is not mandatory and does not insist on a preliminary decree containing all the directions referred to in Rule 12. There is no express or implied prohibition in the Civil Procedure Code against awarding possession and directing an enquiry into future mesne profits by successive adjudication in a pending suit though the normal and ordinary procedure would be to pass a preliminary decree awarding possession and also direct an enquiry into future mesne profits; Swaminatha Odayar v. Gopalaswami Odayar : (1938)2MLJ704 . In any case an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit, cannot be said to be without jurisdiction.'
11. From the above discussion, it is very clear that either the preliminary decree should contain the relief of mesne profits; even if it is not so, it is open to the parties to ask for the enquiry with regard to the mesne profits during the pendency of the suit, which is till the passing of the final decree. This is very clear from the finding of the learned Judges that where a decree awarded possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed 'of the suit, which, for one reason or another continues to be pending. A preliminary decree is the general declaration of the rights of the parties and theoritical allotments which have to be worked out with due regard to the regularisation of the profits and drawing by the parties subsequent to the institution of the suit till the passing of the final decree. This aspect is also clear from the following passage of the Full Bench judgment in Babburu Basavayya v. Babburu Guravayya, : AIR1951Mad938 :
'If Order 20, Rule 12, or the analogy of that rule is to be applied to suits for partition, as was done in Ghulusam Bivi v. Ahamadsa Rowther, ILR 18 Mad. 296 a direction for an enquiry into profits, past or future, can be given only at the time when a decree for possession of the property is passed, that is to say, at the time of the passing of a final decree for partition of the properties, when alone the shares would be entitled to get possession of their respective allotments. On the completion of such enquiry a further final decree in respect of profits will have to be passed. This was the view taken by Oldfield J., in Mahalakshmanmma v. Rajamma, 1917 (43) I.C. 458. We might mention that the conclusion of the learned Judge was affirmed in Letters Patent Appeals Nos. 116 and 58 of 1917.'
The Full Bench, in the above referred judgment further concluded as follows:
'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: Jadu Nath Ray v. Parameshwar Mallik, ILR 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 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 and decided before an equitable final partition can be effected. Among them are the realisation of common out standings, 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 aliener 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. Order 20, Rule 18, Civil Procedure Code, 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, as in either case the result of the enquiry has to be incorporated in the final decree.'
12. From the above passage, it is clear that the learned Judges have held that it is open to the court to give direction with regard to the enquiry into mesne profits during the pendency of the suit and further construed that till the passing of the final decree the suit is pending. Hence when once a filial decree is passed, it interdicts the rights of the parties.
13. In fact the Full Bench has observed that even though there is no prayer in the plaint, it is open to the court to grant the relief of mesne profits which is clear from the following passage in the judgment in Babburu Basavayya v. Babburu Guruvayya, : AIR1951Mad938 :
'The absence of a specific prayer in the plaint was held to be no bar to the award of such profits in the final decree. The principle of this decision was accepted and acted upon by Mack J., in Abdul Rahim Saheb v. Abdul Salam, AIR 1949 Mad. 743 and by a division bench of which one of us was a member in Civil Revision Petition No. 700 of 1947.'
14. Hence we are very clear from the above said Full Bench judgment that even though the preliminary decree do not contain any relief with regard to the mesne profits, it is open to the court to grant the same, however, that should be incorporated in the final decree, which means, in the absence, of any relief in the final decree, then it is not open to the parties to claim the same.
15. The abovesaid Full Bench judgment was relied upon by the learned Division Bench of the Andhra Pradesh High Court in Kasibhatla Sathyanarayana Sastrulu v. Kasibhatla Mallikarjuna Sastrulu, : AIR1960AP45 in the following terms:
'From the above observations contained in the decision of the Full Bench in Bassavayya v. Guravayya, 1957 (2) A.W.R. 474: AIR 1958 A.P 517 which two bench decisions of this Court have affirmed to be good law and unaffected by anything contained in the decision of the Supreme Court in Mohammed Amin's case, : 1SCR1133 , we are of opinion that the application filed by the plaintiffs is entitled to be considered on merits and not to be rejected on the ground that ascertainment of profits since suit has not been asked for in the plaint. It is for the court entertaining that application to determine whether the discretion should be exercised in giving a direction in the partition suit itself or refer the parties to a separate suit.'
16. The learned counsel for the appellants refers to the Supreme Court judgment in Mohamed Amin's case, : 1SCR1133 and contended that unless the mesne profits is asked for in the plaint, then it is not open to the court to grant the relief.
17. The identical question was raised before the Division Bench of Andhra Pradesh High Court and contended that in view of the said Supreme Court judgment in Mohammed Amin's case, : 1SCR1133 the Full Bench judgment of this Court in Babburu Basavayya v. Babburu Guravayya, : AIR1951Mad938 is not a good law. In the case Satyanarayana v. Mallikarjuna, : AIR1960AP45 , the Division Bench judgments of the Andhra Pradesh High Court in Atchamma v. Rami Reddy, AIR 1958 AP 517 and Krishnamma v. Latchuma Naidu, AIR 1958 AP 520 wherein it has been observed that there is nothing in the decision of the Supreme Court in Mohamed Amin's case, AIR 1952 SC 359 to indicate whether their Lordships were referring to the future profits.' i.e., profits since the institution of the suit. Only on this basis, the learned Division Bench found that the Full Benchjudgment of this court in Babburu Basavayya v. Babburu Guravayya, : AIR1951Mad938 , is by no means been shaken or impair by the decision of the Supreme Court in Mohammed Amin's case, : 1SCR1133 . In view of the above Full Bench judgment, we do not want to multiply the authorities referred to by the counsels.
18. We are in agreement with the view taken by the earlier Full Bench of this Court in Babburu Basavayya v. Babburu Garuvayya, : AIR1951Mad938 that till the final decree is passed, the court is empowered to grant the relief of mesne profits. Once the final decree is passed, thereafter it is not open to the court to grant the relief of mesne profits. The simple reason being that the final decree is the one which is to be executed. It is well known fact that the executing court cannot go beyond the decree.
19. For the foregoing reasons, we answer the question referred to the Full Bench as follows: In a partition action, the lis gets terminated for all purposes at the time of passing of the final decree even with regard to the future mesne profits and as such it is not open to the parties to claim the relief of mesne profits beyond the date of passing of the final decree, unless the final decree provides for such relief.
20. Admittedly in this case the respondents have filed the application for the mesne profits nearly six years after taking deliver of their share of the property pursuant to the final decree. The final decree in the suit is not before the court to ascertain as to whether it provides for mesne profits subsequent to the date of the final decree. As the respondents already took possession of their share of the property pursuant to the final decree, the application filed by them for the mesne profits is not maintainable and as such the second appeal has to be allowed. There is no other question involved in the second appeal to be decided and as such there is no need to send the second appeal back to the learned single Judge. Accordingly the second appeal shall stand allowed.