1. This is an appeal by defendants 1 and 3 in O.S. No. 731 of 1933 on the file of the Court of the District Munsif of Guntur against an order of remand passed by the Subordinate Judge of Guntur in A.S. No. 73 of 1946. In O.S. No. 731 of 1933 which was a suit for partition, a preliminary decree was passed on 23rd December, 1937. The preliminary decree directed inter alia.
that the mesne profits due to the plaintiff on his share mentioned above be determined on a separate petition by the plaintiff in execution.
2. The plaintiff filed C.M.P. No. 697 of 1945 out of which the present civil miscellaneous appeal arises on 22nd February, 1945. The application was filed under Order 20, Rule 12 of the Civil Procedure Code. Defendants 1 and 2 contended that the petition was barred by limitation. They also raised objections as to the period for which mesne profits could be allowed and as to the amount claimed. The District Munsif dismissed the petition as barred by limitation and did not therefore enquire into the quantum of mesne profits allowable to the plaintiff. Nor did he record any finding as to the period for which mesne profits could be granted. On appeal by the plaintiff the Subordinate Judge of Guntur held that the application was not barred by limitation and remanded it to the District Munsif for enquiry and disposal.
3. The only point that arises in this appeal is one of limitation. It has first been argued by Mr. Satyanarayana Razu, the learned advocate for defendants 1 and 2 that since the application was made more than three years after the preliminary decree it is barred by limitation under Article 181 of the Limitation Act. This point however is directly covered by a decision of the Full Bench in Ramasubramania Pattar v. Karimbil Pati : AIR1940Mad124 It was there pointed out that there is no need for a plaintiff in a partition suit to apply for the passing of a final decree as regards mesne profits. All that he need do is to remind the Court that the question of mesne profits remains to be disposed of. Order 20, Rule 12, Sub-rule (3) of the Civil Procedure Code as it stood when the Full Bench decision was given referred to an 'application' by the decree-holder for an enquiry into mesne profits and the passing of a final decree in respect thereof. The Full Bench held that the word 'application' in that sub-rule meant nothing more than a motion which is entirely free from the mischief of Article 181. In the light of the above decision Sub-rule (3) has been subsequently amended. In view of the decision of the Full Bench it is impossible to hold that an application for the ascertainment of mesne profits and for the passing of a final decree comes tinder Article 181 of the Indian Limitation Act and that it must be filed within three years from the date of the passing of the preliminary decree.
4. The preliminary decree in the Full Bench case did not contain a direction like the one that is to be found in the preliminary decree in this case, namely, that the petition for ascertainment of mesne profits must be in execution, Relying on this direction the appellants' learned advocate has argued that the application for ascertainment of mesne profits must be one in execution and if it is an application in execution it would be barred by limitation. In Lakshmibai v. Ravji (1928) 31 Bom. L.R. 400 which is one of the cases relied on in support of the argument, it was held with reference to a decree which directed that the mesne profits should be ascertained at the time of execution that there was no want of jurisdiction in the Court when it made that decree and that the decree could not therefore be treated as a nullity, the argument evidently being that since under the Civil Procedure Code of 1908, there can be no ascertainment of mesne profits in execution, the decree itself must be regarded as one passed without jurisdiction. The learned Judges held that there was no absence of jurisdiction in the Court which passed the decree but that it was merely an erroneous or irregular exercise of jurisdiction. They, therefore, overruled the contention that there was no valid decree at all for mesne profits. The Bombay case was concerned with a petition for execution. Whether or not a petition is maintainable in the execution department was not however considered by the Bombay Judges. Arguing from that case Mr. Razu says that once the Court decides, though irregularly, that mesne profits should be ascertained in execution, the parties are bound by it and the ascertainment can take place only in an execution petition. This may no doubt seem logical and may be said to be involved in the Bombay decision though, as already stated, the only argument addressed before the Bombay Bench was whether the decree was altogether a nullity or whether it could be relied upon by the plaintiff as a decree establishing his right to mesne profits. In Kemgam Swamy v. Subbamma : AIR1930Mad30 the other case cited on the appellant's behalf it was held by Venkatasubba Rao and Madhavan Nair, JJ., in regard to a decree similarly worded that it was not passed without jurisdiction and was, therefore, not void but was passed in irregular exercise of jurisdiction and could be given effect to. The decision in Lakshmibai v. Ravji : AIR1940Mad124 was cited with approval. A further question also arose in Kemgam Swamy v. Subbamma : AIR1930Mad30 . The application actually made was described as an execution petition. This was objected to and it was contended that an interlocutory application should have been filed under Order 20, Rule 12. The learned Judges accepted the argument that the proper procedure was to apply under Order 20, Rule 12, but they found no difficulty in treating the petition which had actually been filed as an application in the suit. They held it was merely a question of form. Venkatasubba Rao, J., incidentally pointed out that on the facts of the case before them there was no further point involved such as limitation. The learned Judges were evidently of the opinion that notwithstanding the direction in the decree that the mesne profits should be ascertained in execution, it is not permissible for the Courts which may have to deal with the subsequent proceedings to permit a departure from the normal procedure enjoined by the Code, namely, that of an application under Order 20, Rule 12. That seems to me to be the ground on which the decision in Kemgam Swamy v. Subbamma : AIR1930Mad30 must be taken to have proceeded in so far as it laid down that even in the case of a decree like the one before me the application for the ascertainment of mesne profits must be one under Order 20, Rule 12, and not an execution petition.
5. If the Bombay decision is to be followed to its logical end it would involve the conclusion firstly that the ascertainment of mesne profits must be in an execution petition and secondly that in regard to such a petition the period of limitation prescribed by Article 182 of the Limitation Act would apply.
6. This logic, however, as I have already pointed out, was broken into by the decision in Kemgam Swamy v. Subbamma : AIR1930Mad30 and once the position is reached that in spite of the direction in a decree of the kind I am called upon to deal with, the Court would and must insist on the proper procedure under Order 20, Rule 12 being followed, it seems to me that the next step cannot be avoided, namely, that in dealing with the question of limitation the principles of law that must be applied must be those governing an application under Order 20, Rule 12. In other words, the proper way of dealing with a decree which directs the ascertainment of mesne profits in execution is to treat it as a decree declaring the plaintiff's rights to mesne profits coupled with a direction that the mesne profits may subsequently be ascertained in an application to be filed for the purpose. In so far as the decree directs that the application must be one in execution, it is an unnecessary and incorrect addition and cannot be given effect to. Otherwise by an erroneous decree of the nature under discussion the Court would not only lay down a separate law of procedure for the parties which is entirely at variance with the law of the land but would also be curtailing the period within which an application can be made by a successful plaintiff. For instance, the argument on behalf of the appellant would in the present case, involve a curtailment of the period of limitation to three years from 1937 notwithstanding that according to the Full Bench decision in Ramasubramanya Pattar v. Karimbil Pati : AIR1940Mad124 there is no period of limitation at all.
7. I cannot say that the position is quite logical. I am bound however to follow the decision in Kemgam Swamy v. Subbamma : AIR1930Mad30 to the extent that it decided that the proper application can only be tinder Order 20, Rule 12. It follows from this that the question of limitation must be viewed in this light on the footing that the application is one properly filed under Order 20, Rule 12. I notice that the Allahabad High Court in Narain Das v. Bhagavati Prasad : AIR1934All465 held that a decree clothed in similarly defective language must be regarded as a decree passed in the manner contemplated by Order 20, Rule 12.
8. In the result I hold that the point as to limitation cannot be accepted. The appeal, therefore, fails and is dismissed with costs.
9. No leave.
10. I may finally observe that it is highly regrettable that in 1937, after the present Civil Procedure Code had been in operation for 29 years, a decree of this kind should have been passed.