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Vankamamidi Mahalakshmamma Vs. Venkamamidi Rajamma Alias Raja Lakashmamma and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in43Ind.Cas.458
AppellantVankamamidi Mahalakshmamma
RespondentVenkamamidi Rajamma Alias Raja Lakashmamma and anr.
Excerpt:
civil procedure code (act v of 1908), section 115, order xx, rule 12 - partition suit--profits, prior to plaint and after, how to be decreed--later profits, enquiry as to--absence of notice to defendant--irregularity--revision--high court, interference by. - - the failure to give this notice seems to me a material irregularity, which justifies the application of section 115, civil procedure code......plaint should be decreed in the decree which gives possession, that is in a partition suit in the final decree; and the profits after it may be the subject of a direction in that decree for an enquiry and of a separate final decree after its conclusion. the lower court certainly erred in dealing with the earlier profits in its preliminary decree, though it may have been open to it to deal with the later profits either prior to or after the final decree. two consequences follow. firstly, no inference in favour of a conclusion that the later profits had been refused should have been drawn by petitioner from the irregular award of the earlier. but, secondly, on the view of the court's procedure most favourable to respondent, as it took one of two alternative courses in awarding the later.....
Judgment:

Oldfield, J.

1. The preliminary and final decrees passed by the lower Court seem to me to have been at least irregular, in the provision they made respectively regarding profits before and after the beginning of Fasli 1317. The suit was no doubt for partition. But it is not disputed that Order XX, Rule 12, applies. Under that rule the profits prior to plaint should be decreed in the decree which gives possession, that is in a partition suit in the final decree; and the profits after it may be the subject of a direction in that decree for an enquiry and of a separate final decree after its conclusion. The lower Court certainly erred in dealing with the earlier profits in its preliminary decree, though it may have been open to it to deal with the later profits either prior to or after the final decree. Two consequences follow. Firstly, no inference in favour of a conclusion that the later profits had been refused should have been drawn by petitioner from the irregular award of the earlier. But, secondly, on the view of the Court's procedure most favourable to respondent, as it took one of two alternative courses in awarding the later profits and-that not the one indicated by any issue already framed, it should have given petitioner clear notice of its enquiry. This it did not do. For the general notice relied on, merely that which the parties had of the proceedings as pending in no way gave warning that the trial of an issue as to these profits was to take place at once and was not to be postponed until a direction for it had been given in the final decree. The failure to give this notice seems to me a material irregularity, which justifies the application of Section 115, Civil Procedure Code.

2. It is argued that this Court is asked to revise the lower Court's order rejecting petitioner's application for an amendment of the decree, not the decree itself, and that the remedy of appeal was open to her. But owing to the lower Court's procedure she had no notice that the decree contained or was' likely to contain anything she could object to. Her petition no doubt should have been worded and dealt with as for review of the decree, not an amendment. But it contained all the allegations necessary to justify a review and they have been considered by the lower Court.

3. The result is that the lower Court's order is set aside and it is directed to readmit I.A. No. 1115 of 1914 and deal with it as a review petition in the light of the fore going with reference to the allegation that new and important evidence, which petitioner was not disabled from adducing by any fault of her own, is now available. Costs in this Court and the lower Court to date will be costs in the cause.


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