@JUDGMENTTAG-ORDER
George Vadakkel, J.@mdashBy the preliminary decree dated 22nd December 1959 the Defendant was awarded mesne profits from 1st April 1958 till the date of the final decree and thereafter till recovery of possession of the property allotted to them as per the final decree. This decree was passed in a suit for partition whereby the seven Plaintiffs sought to have their 7/8 shares separated and allotted to them. The Defendant was allowed his 1/8 share with mesne profits as aforesaid. The quantum of mesne profits was directed to be ascertained in the final decree proceedings. Pursuant to the final decree proceedings a decree was passed on 11th March 1971. However, the quantum of mesne profits was not ascertained, nor was the same provided for by the decree dated 11th March 1971. The Defendant appears to have preferred an appeal, A.S. No. 188 of 1972 on the file of the District Court, Quilon. However, the Defendant did not impugn the decree passed on 11th March 1971 on the ground that there is no determination of the quantum of mesne profits, nor any provision in that behalf. A.S. No. 188 of 1972 was decided on 25th June 1974.
2. On 2nd July 1975 the Defendant filed I.A. No. 2019 of 1975 praying that an additional decree be passed in the case. The Defendant therein requested the court that a final decree be passed allowing the Defendant the mesne profits due to him. This application was allowed by the lower court and hence this revision by the 1st Plaintiff who unsuccessfully impugned the order passed by the learned Subordinate Judge in appeal before the District Court, Quilon.
3. It is contended that the decree passed on 11th March 1971 is a final decree and that thereafter the trial court has no jurisdiction to pass any further decree. A final decree as defined in the explanation to Section 2(2) of the Code of Civil Procedure, 1908, completely disposes of the suit. Where a decree does not completely dispose of the suit, it is a preliminary decree. Note that the preliminary decree dated 22nd December 1959 declared the right of the Defendant to recover mesne profits in the manner stated hereinbefore. The preliminary decree also directed quantification of the mesne profits in the final decree proceedings. The decree passed on 11th March 1971 does not provide for the same. This means that the suit has not been completely disposed of on 11th March 1971 in so far as the direction as regards the quantification of mesne profits has not been complied with and provision in that behalf has not been made in the decree of 11th March 1971. It is, therefore, difficult to hold that the decree of 11th March 1971 is the final decree in the case, though to the extent it goes the same may be an executable decree. All executable decrees need not be final decrees.
4. In this regard it does not make any difference that the Defendant preferred A.S. No. 188 of 1972 in so far as the appeal would not make the decree of 11th March 1971 any more final than it was when it was passed by the trial court. The result is the suit has not been completely disposed of either by the decree of 11th March 1971 or the appellate decision in A.S. No. 188 of 1972. In view of what is stated above there is no merit in the contention that the trial court has no jurisdiction to deal with the question of mesne profits after 11th March 1971 or 25th June 1974 when A.S. No. 188 of 1972 was decided.
5. That the position of law is as aforesaid is clear from the Full Bench decision in
Ordinarily, there will be one preliminary and one final decree but, as pointed out in
Referring to the aforesaid passage Subba Rao, C.J., of the Andhra Pradesh High Court, as ho then was, said that:
The Full Bench recognised that there was nothing in the CPC which can be construed as a prohibition against the Court in a proper case passing more than one preliminary decree and one final executable decree in a suit. In a proper case, therefore, where a supplemental final decree can be made, the Full Bench does not preclude the Court from ascertaining the profits and including the same in the supplemental decree. Rajah of Venkatagiri v. State AIR 1958 A.P. 520 at 522.
The decision in Rajah of Venkatagiri v. State AIR 1958 A.P. 520 further lays down that if an application for ascertainment of the profits is filed after the passing of the final decree, the same cannot be allowed. This decision is to be understood with reference to the decree passed in that case which did not allow profits to the decree-holder. There was no provision in any of the decrees passed in the case as regards future profits. The suit appears to have been one for partition and the principle that it is not only the properties that are liable to be partitioned by the final decree but also the profits there from was sought to be pressed into service to argue that despite no provision in the decree in that behalf a sharer would be entitled to apply for ascertainment of profits and for a decree in that behalf. The learned Chief Justice said that if such an application had been filed before the final decree was passed in the case, the same could be allowed, but if such an application is filed after the final decree, such an application could not be allowed. The learned Chief Justice said:
If a party to a partition suit files an application for the ascertainment of future profits and the court, without disposing of that application, makes a final decree in respect of the other matters and without incorporating any relief for profits, the legal position is that the entire subject-matter of the suit has not been finally disposed of and, on that basis, it may be open to the Court to make another supplemental final decree in regard to profits. That would have been the position if the Appellant filed his application for ascertainment of profits before the Subordinate Judge''s Court made the final decree.
6. In so far as in the case on hand a provision has been made for mesne profits in the preliminary decree itself none of the considerations discussed by the Andhra Pradesh High Court in the aforesaid case arises here, though it appears to me that the doctrine stated by the learned Chief Justice is the same which I hereinbefore stated in the beginning of this judgment.
7. The learned Counsel for the Respondent brought to my notice the latest decision bearing on the point discussed by the Andhra Pradesh High Court and that is the decision of the Madras High Court in
8. There is no merit in this revision petition. The same is dismissed. In the circumstances of the case there will be no order as to costs.
