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M. Janakirama Iyer Vs. Meenakshiammal - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Reported in(1982)2MLJ461
AppellantM. Janakirama Iyer
RespondentMeenakshiammal
Cases ReferredChandrakantam v. Chandramouliswara Prasad I.L.R.
Excerpt:
.....that the limitation starts on the next day as and when the property is taken possession is, according to the revision petitioner, clearly erroneous. 478, are clearly to the effect that the claim of the petitioner is not barred by time. when the respondent had taken possession of the properties and he has failed to move the court within a period of three years, claiming mesne profits, it can be well said that the application in i. 234 of 1980 is clearly barred by time. the better view seems to be that there is no such thing as limitation for such applications. when the plaintiff had taken possession of the properties and he had failed to move within the period of three years, claiming mesne profits, the lower court is correct in having observed that the application in i. 877 of 1980 was..........barred by time. the lower court has dealt with the matter by raising a point whether the claim of mesne profits is barred by time and came to the conclusion that article 137 of the limitation act, would apply to a case of this type, since the plaintiff had taken possession of all the properties covered in the suit and as the application for mesne profits had not been filed within a period of three years from the date when it accrues and that the application was barred by time. aggrieved by the above decision of the lower court the second plaintiff has come forward with this civil revision petition, inter alia contending that the lower court had erred in holding that the petition filed by the respondent herein to appoint a commissioner to ascertain the mesne profits is barred by time. it.....
Judgment:
ORDER

S. Swamikkannu, J.

1. This civil revision petition is filed against the order passed in I.A. No. 877 of 1950 in I.A. No. 234 of 1980 in O.S. No. 21 of 1963 on the file of the Court of the learned Subordinate Judge, Mayuram, The application was filed by the plaintiff under Order 7, Rule 11 and Section 151, Civil Procedure Code, to enquire as to whether I.A. No. 234 of 1980 filed under Order 20, Rule 12, Civil Procedure Code, is barred by time. The lower Court has dealt with the matter by raising a point whether the claim of mesne profits is barred by time and came to the conclusion that Article 137 of the Limitation Act, would apply to a case of this type, since the plaintiff had taken possession of all the properties covered in the suit and as the application for mesne profits had not been filed within a period of three years from the date when it accrues and that the application was barred by time. Aggrieved by the above decision of the lower Court the second plaintiff has come forward with this civil revision petition, inter alia contending that the lower Court had erred in holding that the petition filed by the respondent herein to appoint a Commissioner to ascertain the mesne profits is barred by time. It is further contended by the learned Counsel for the revision petitioner that in view of the fact that in the preliminary decree relegating the ascertainment of the mesne profits by means of a separate application, the learned Subordinate Judge ought to have held that the present application is not an independent one but only a continuation of the suit Mr. R. Srinivasan, learned Counsel for the revision petitioner, submitted that the lower Court failed to see that when no final decree has been passed the question of limitation would not arise at all. It is further submitted on behalf of the revision petitioner by Mr. R. Srinivasan, learned Counsel for the revision petitioner, that the learned Subordinate Judge fell into error in taking the date on which the plaintiff took delivery of possession of the property viz., 30th March, 1975, as the date on which the right to apply for the mesne profits accrued. It is also pointed out on behalf of the revision petitioner that the Court below erred in applying Article 137 of the Limitation Act, and holding that the petition was clearly barred by time. The view of the lower Court1 that the limitation starts on the next day as and when the property is taken possession is, according to the revision petitioner, clearly erroneous. It is further pointed out by the learned Counsel for the revision petitioner Mr. R. Srinivasan on behalf of the revision petitioner that the decision reported in, Ramasubramanya Pattar v. Karimbil Pati and Ors. : AIR1940Mad124 and in Jainalabuddin v. K.S.A. Abdul Kadar and Ors. (1978) 91 L.W. 478, are clearly to the effect that the claim of the petitioner is not barred by time. In other words it is submitted that the lower Court committed an error in thinking that the petition ought to have been filed within three years from the date when the plaintiff took possession of the properties. It is also submitted that the order under revision becomes revisable by virtue of Section 115, Civil Procedure Code, since the lower Court ought to have that the petition was not barred by time.

2. On the other hand Mr. R. Balachander, learned Counsel for the respondent, contends that the lower Court had exercised its power properly and there is no excess jurisdiction nor is there any error committed by it inasmuch as it has followed the principle embedded in the decisions reported in Dashnamurthi Pillai v. Vedamurthy Mudaliar : (1927)53MLJ440 and in K.R. Muthu Alagappa Chettiar v. Ahmed Ibrahim Alim Saheb : AIR1925Mad1276 .

3. As a matter of fact the lower Court in the order under revision itself has enlightened, in that it had referred to the decisions reported in Ramasubramanya Pattar v. Karimbil Pati and Ors. : AIR1940Mad124 and in Jainalabuddin v. K.S.A. Abdul Kader and Ors. (1978) 91 L.W. 478, and has observed that under Article 137 the limitation is three years for any application for which no limitation is prescribed and that the starting point for the three years' limitation period is the date when the right to apply accrues. In the instant case, according to the lower Court, the right to apply for mesne profits accrued to the plaintiff even on 30th March, 1975, itself because the properties had been taken delivery of possession and there was no pending litigation between the parties even after 20th March, 1975, so as to infer that the suit has not been finally disposed of between the parties. When the respondent had taken possession of the properties and he has failed to move the Court within a period of three years, claiming mesne profits, it can be well said that the application in I.A. No. 234 of 1980 is clearly barred by time. In the circumstances it was held by the lower Court in the order under revision that there is absolutely no basis for the contention of the plaintiff that the application for mesne profits is only a reminder and the suit is still deemed to be pending. Therefore the lower Court repelled the contention that was raised on behalf of the plaintiff and held that Article 137 of the Limitation Act, would apply to a case of this type since the plaintiff had taken possession of all the properties covered in the suit and as the application for mesne profits had not been filed within a period of three years from the date when it accrues due, the application was barred by time. Hence the application in I.A. No. 877 of 1980 filed by the defendant under Order 7, Rule 11 and Section 151, Civil Procedure Code, to enquire as to whether I.A. No. 234 of 1980 filed under Order 20, Rule 12, Civil Procedure Code, is barred by time was allowed.

4. Mr. R. Srinivasan, learned Counsel for the revision petitioner, refers to the decision re ported in Jainalabuddin v. K.S.A. Abdul Kader and Ors. (1978) 91 L.W. 478, where the following observation has been made by Balasubrahmanyan, J:

This decision, however, is not apposite to the present case. There are no two suits here, but only one, and in that suit the plaintiffs were quite within their rights in asking for a decree for 'future' mesne profits from the date of the suit. It is not suggested that the suit in ejectment itself is barred by limitation. This being so, it is difficult to see how Article 51 of the schedule to the Limitation Act, 1963 or any article at all can have relevance to the present case. It may be observed that so long as the final decree for mesne profits is not passed, the suit is still pending and alive. There seem to be two views prevalent in this country as to whether the provisions pf the Limitation Act prescribing periods of limitation for applications applies to the application for mesne profits in suits pursuant to the directions in the preliminary decree. One view is that the statute applies. The better view seems to be that there is no such thing as limitation for such applications. For instance, they cannot be regarded as execution petitions, for the suits in which they are filed would still be pending at the time they are filed. Reference may be made in this connection to the following cases : Ramasubramania Pathar v. Karambil Pati (1978) 91 L.W. 478; Ramachandra Raju v. Bhujanga Rao : AIR1940Mad124 ; Chandrakantam v. Chandramouliswara Prasad I.L.R.(1923) Mad. 46. Although they are not direct decisions, it seems to me that they do point to the view I have earlier expressed. Even otherwise, if any at all of the Schedule to the Limitation Act, 1963, is capable of application to a case of this kind it can only be the residuary Article 137 falling under the Third Division in the Schedule relating to Applications, for there is no other specific article in that division which deals with this subject-matter. Under Article 137, the limitation is three years for any application for which no limitation is prescribed under any other article in Part I of the Third Division in the schedule. The starting point for the three-year-limitation period under Article 137 is the date when the right to apply accrues. In this case, the right to apply for mesne profits accrued to the plaintiff under the preliminary decree, but that decree was taken in appeal by the defendant and the appeal was dismissed only on 15th June, 1972. This application for mesne profits was actually filed in this case on 8th August, 1972. In the circumstances, even on the footing that any question of limitation at all arises as respects an application for mesne profits in a suit pursuant to a preliminary decree therein, I must hold that the application in this case has been filed within time.

It is relevant to note that the very same, decision is referred to by the lower Court and it came to the conclusion that under Article 137 of the Limitation Act, the limitation is three years for any application for which no limitation is prescribed. The starting point for the three years limitation period is the date when the right to apply accrues and that in the instant case the right to apply for mesne profits accrued to the plaintiff even on 30th March, 1975, itself because of the properties had been taken delivery of possession. It is common ground that the application has been filed on 11th December, 1979, and it is also common ground that the immoveable properties in the form of house had been taken delivery on 29th March, 1975. Therefore the lower Court is correct in having observed that there was no material to infer that the suit was not finally disposed of between the parties. When the plaintiff had taken possession of the properties and he had failed to move within the period of three years, claiming mesne profits, the lower Court is correct in having observed that the application in I.A. No. 877 of 1980 was clearly barred by time. Therefore, the contention that was raised on behalf of the plaintiff that the application for mesne profits is only a reminder and that the suit still deemed to be pending was rightly repelled and held to be unsustainable and untenable by the lower Court. There is nothing in this order to be revised or dealt with under the provisions of Section 115, Civil Procedure Code. There are no merits in this civil revison petition and is hereby dismissed. However, there will be no order as to costs.


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