THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Civil Revision Petition No.3873 of 2009 ORDER: The petitioner filed O.S.No.32 of 1993 in the Court of Senior Civil Judge, Proddatur, against the respondents for the relief of partition and separate possession of the suit schedule properties. He has also claimed the relief of mesne profits. A preliminary decree was passed on 26.07.2002 directing that the petitioner is entitled for half of the plaint A and B schedule properties. The petitioner filed I.A.No.69 of 2003 under Order 20 Rule 12 C.P.C. with a prayer to appoint an Advocate- Commissioner for ascertainment of mesne profits and for recovery of the same from the respondents. The respondents opposed the application. Through its order dated 01.03.2009, the trial Court dismissed the I.A. Hence, this civil revision petition. Heard the learned counsel for the petitioner. A perusal of the judgment dated 26.07.2002 no doubt discloses that not only an issue was framed as to the entitlement of the petitioner to be paid the mesne profits but also a finding was recorded in his favour on that issue. However, a direction as to the ascertainment of mesne profits was not incorporated in the decree. The petitioner could have filed an application under Order 20 Rule 12 C.P.C., if only there was a clause in the decree for that purpose. It may be true that a decree must agree and accord with the judgment (see Rule 6 of order 20 C.P.C.). However, if there is any defect in the decree, the petitioner had to file an application for correction of the decree under Section 152 C.P.C. In paragraph 16 of its judgment in the I.A., the trial Court made an observation to the effect that it must be deemed that the relief of mesne profits was not granted in the suit. It does not appear to be correct. In paragraph 16 of the judgment, the trial Court held as under: 16. As seen from the contents of decree dated 24.07.2002 in the preamble it is made clear that the plaintiff filed the suit claiming the relief of partition besides claiming the relief of mesne profits of his half share from the date of the suit till the date of delivery, but the said relief is not specifically granted in the operative portion of the decree. Hence, it has to be deemed that such relief claimed by the petitioner/plaintiff for mesne profits is not decreed. Whereas the relief of mesne profits claimed by the petitioner/plaintiff in the suit itself is from the date of filing of the suit till the date of delivery of the possession it is ridiculous how he made a claim for mesne profits for 33 years right from the year 1969. Therefore, the civil revision petition is disposed of upholding the order under revision, but leaving it open to the petitioner – (a) to seek correction of the decree in O.S.No.32 of 1993 to be in conformity with the judgment; and (b) to take steps for passing of the final decree for division of the property by metes and bounds and delivery of his share of the property and for ascertainment and recovery of the mesne profits depending on the nature of correction that may be ordered in the decree. In view of the fact that the suit itself is filed in the year 1993, the trial Court shall accord priority to the application that may be filed by the petitioner and pass appropriate orders, uninfluenced by any observations made in the order under revision. There shall be no order as to costs. __________ 22.02.2010 JSU THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Civil Revision Petition No.3873 of 2009 Date: 22.02.2010 JSU