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Veerappa Goundan Through His Grandfather and Next Friend Alagia Goundan Vs. Veerappa Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad886; (1925)48MLJ512
AppellantVeerappa Goundan Through His Grandfather and Next Friend Alagia Goundan
RespondentVeerappa Goundan and ors.
Cases ReferredSubbalakshmi Ammal v. Ramanujam Chetti
Excerpt:
- phillips, j.1. in this case a preliminary decree for partition and for mesne profits was passed in favour of the plaintiff, and this was confirmed in appeal, the original decree being dated nth december, 1919, and the appellate decree 21st february, 1922. meanwhile the final decree had been passed by the trial court on 15th september, 1920; and in this final decree the partition was decreed in accordance with a memorandum put in by the parties, and no relief was given in respect of the mesne profits. seven or eight months after the passing of the appellate decree confirming the preliminary decree, an application was made to the first court to amend the final decree either by way of amendment or by way of review on the ground that the final decree had omitted to give relief which had been.....
Judgment:

Phillips, J.

1. In this case a preliminary decree for partition and for mesne profits was passed in favour of the plaintiff, and this was confirmed in appeal, the original decree being dated nth December, 1919, and the appellate decree 21st February, 1922. Meanwhile the final decree had been passed by the Trial Court on 15th September, 1920; and in this final decree the partition was decreed in accordance with a memorandum put in by the parties, and no relief was given in respect of the mesne profits. Seven or eight months after the passing of the appellate decree confirming the preliminary decree, an application was made to the first Court to amend the final decree either by way of amendment or by way of review on the ground that the final decree had omitted to give relief which had been allowed in the preliminary decree. That petition was dismissed and no appeal has been preferred against it, nor any application to review that order; subsequently an application was. put in under Section 151 of the Code of Civil Procedure asking for a further final decree for the mesne profits awarded in the preliminary decree. Objection is now taken by the respondent that this petition will not lie. If the application is treated as an application for a final decree in the suit, the order on such application must be treated as a decree and an appeal will lie. This is the view taken by this Court in Subbalakshmi Ammal v. Ramanujam Chetti : (1918)35MLJ552 ; and apparently no appeal lies to this Court.

2. Apart from this the argument proceeds on the assumption that the final decree of 15th September, 1920, is partly a final decree and partly a preliminary decree, i.e., it was final as regards partition and preliminary as regards mesne profits. Inasmuch as there is no mention whatever of mesne profits in the decree, it is difficult to understand this view. It purports to be a final disposal of the suit. The mere omission to refer to one of the reliefs asked for cannot make the decree a preliminary decree in respect of that relief. The omission must be deemed to be a refusal of the relief, whether it Was done intentionally or accidentally, and it was open to the party to apply for a review of this decree, or to appeal against it. He did not appeal; his review petition was dismissed and he accepted the dismissal. Now he comes in with this further application under Section 151; but there is no authority and no sufficient ground for invoking the inherent jurisdiction of the Court, the whole matter having been previously disposed of in accordance with law and no objection having been taken.

3. The only other ground urged before this Court is that, as the plaintiff is a minor, he should be treated with the greatest indulgence. When as in this case an application by a major cannot be granted I know no reason for granting a similar application by a minor. It will be open to him on attaining majority to take any steps that he thinks fit on account of his guardian's alleged negligence of which there is at present no evidence. No action need be taken now.

4. I must hold that, as the petition is framed, no revision petition lies, as there could have been an appeal; and on the merits there is no reason to interfere.

5. The petition is accordingly dismissed with costs.


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