IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE SIXTEENTH (16TH) DAY OF SEPTEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP No.6353 of 2009 Between: Kanoj Satyanarayana Prasad & another … Petitioners And: Kanoj Prabhakar Prasad & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.6353 of 2009 ORDER: This revision petition is directed against the order dated 23.07.2009 in IA No.24 of 2008 in OS No.51 of 2000 on the file of the Senior Civil Judge, Kadiri, wherein the said application filed by the respondents 1 to 3 herein-plaintiffs under Order 20 Rule 18 CPC seeking appointment of Advocate Commissioner to divide the plaint schedule properties as per the preliminary decree and also to ascertain the mesne profits from the date of the suit i.e., 10.08.2000, till delivery of possession, was allowed. 2. Heard both sides. Perused the record. 3. The respondents 1 to 3 herein filed suit OS No.51 of 2000 for partition. The suit ended in compromise. Decree passed on 17.06.2004. As per the terms of the compromise, the plaintiffs were entitled 45th share in plaint A schedule properties, except items 4 and 5 and half share in plaint B schedule properties. The plaintiffs filed IA No.24 of 2008 seeking appointment of an Advocate Commissioner for effecting division of the properties by metes and bounds and also for ascertainment of mesne profits from the date of the suit, till the delivery of possession. The defendants filed counter, stating no objection for appointment of the Commissioner for division of the properties as per the preliminary decree, but however opposed the ascertainment of mesne profits on the ground that the same is not envisaged by the compromise decree. By impugned order, the learned Senior Civil Judge, appointed Sri P. Ravinder Babu, Advocate as Commissioner for the purpose of dividing the suit properties as per the preliminary decree by metes and bounds, with the assistance of the Village Officers and also directed ascertainment of the mesne profits from the date of the suit year wise. Aggrieved by the said direction regarding the mesne profits, the defendants 1 and 7 filed the present revision. 4. In ‘Kasibhatla Satyanarayana Sastrulu & others vs. Kasibhatla Mallikarjuna Sastrulu[1]’, the Division Bench of this Court held as follows: “In a partition action even though there is no specific prayer for the ascertainment of profits subsequent to the institution of the suit and the preliminary decree did not contain any such direction, it is still competent for the court to give the direction for the ascertainment of future mesne profits, provided a final decree has not been passed. Therefore, an application for ascertainment of such profits is entitled to be considered on merits and not to be rejected on the ground that ascertainment of profits since the suit has not been asked for in the plaint. It is for the court entertaining that application to determine whether the discretion should be exercised in giving a direction in the partition suit itself or refer the parties to a separate suit.” 5. In ‘Lakshmi Ammal v. Subbaraj[2]’, it was held as follows: “Even where the plaint as well as the preliminary decree is silent as to the mesne profits the court can still direct enquiry into and award mesne profits from the date of suit. The claim for the plaintiff's share of profits accruing from the lands, pending suit, is not properly speaking a claim for mesne profits and Order 20, Rule 18 does not prohibit the court from issuing directions regarding an enquiry into mesne profits after the stage of preliminary decree.” 6. In ‘Mokkapati Nageswara Sastry v. NL Narasimha Rao[3]’, this court, while dealing with the scope of compromise decree wherein there was no direction for ascertainment of the mesne profits while passing the preliminary decree, held that the court can issue such a direction, even after passing of final decree on an application filed for that purpose and that the parties need not file a separate suit for that purpose. This court held as follows: “In a partition suit, the preliminary decree for division of the properties itself implies a right to the share of the income accruing there from and a corresponding duty on the Court to adjudicate the quantum of profits and till then the suit is deemed to be pending. An application for ascertainment of profits can be filed even after the final decree is passed for division of the properties. There is a presumption that in compromise decrees, the parties intended that their remedies in respect of the rights declared in the compromise, be worked out in the same suit without resort to a separate suit unless there is anything expressly provided in the compromise to the contrary. The right to the profits which is declared in the compromise decree can be worked out in the same suit as there is no provision excluding the consideration of the question of profits in the same suit. The application for that purpose can be filed even after passing of a final decree for partition and without the consent of the other side. The Court can and is bound to inquire into the same, and then divide the profits. Till then the suit is deemed to be pending. The fact that there is no direction in the decree for ascertainment of future profits makes no difference as the same is implied in the decree for division.” 7. In the present case, it is not the contention of the petitioners that in the terms of compromise decree, there is any bar to claim mesne profits. It is well settled that more than one application for passing of final decree can be filed in a partition suit and such course of action is not prohibited by the Code. The plaintiffs are seeking ascertainment of mesne profits from the date of the suit, till effecting separate possession, but not in respect of any period prior to filing of the suit. 8. Order 20 Rule 18 CPC, does not prohibit direction by the court for ascertainment of such future mesne profits by way of separate application, even if the preliminary decree is silent regarding the same. 9. In a recent decision in ‘Bandlamoori Venkata Lakshmamma v. Nayineni Janakamma & others[4]’, this court while dealing with the question whether the application filed for ascertainment of mesne profits was maintainable, it was held that ‘once a final decree passed, application for mesne profits cannot be maintained’. In the above case, final decree was passed even while the application for determination of mesne profits was still pending. This court held that the claim for mesne profits is treated almost as an inseparable part of plea for partition and even in the absence of prayer for ascertainment of future mesne profits and though the preliminary decree does not contain any direction for ascertainment of future mesne profits, such an exercise can be undertaken at the stage of final decree proceedings. The plea against maintainability of the application for mesne profits was therefore not accepted. It was further held that though the final decree was passed, it cannot be deemed to have covered the relief claimed in the application that was pending and therefore, to that extent, final decree must be deemed to be partial and so disposal of the application for mesne profits even subsequent to passing of final decree, was not illegal. 10. In the light of the principles laid down in the above decision, it must be held that the plaintiffs are certainly entitled to seek ascertainment of future mesne profits from the date of the suit, till physical delivery of separate possession of their shares, notwithstanding the fact that the preliminary decree was silent regarding the same. The impugned order containing a direction to the Advocate Commissioner to ascertain the mesne profits from the date of the suit, does not therefore, call for any interference. 11. In the result, the civil revision petition is dismissed. No order as to costs. G.V.SEETHAPATHY, J Date: 16.09.2011 bss [1] AIR 1960 AP 45 [2] AIR 1975 Madras 208 [3] 1983(1) ALT 414 [4] 2011(3) ALT 514