THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION No.216 of 2010 ORDER: Respondent No.1 filed O.S.No.41 of 1981 in the Court of the Senior Civil Judge, Atmakur against the petitioner and respondent Nos.2 to 6 for the relief of partition and separate possession of the suit schedule property. The trial Court dismissed the suit on 05.03.1984. Respondent No.1 filed A.S.No.2072 of 1986 before this Court. Through judgment, dated 12.11.2001, this Court allowed the appeal and passed a preliminary decree directing that respondent No.1 is entitled to half share in the suit schedule property. After the preliminary decree became final, respondent No.1 filed an application before the trial Court with a prayer to pass final decree. When the enquiry into the final decree was in progress, respondent No.1 filed I.A.No.141 of 2004 for mesne profits. The petitioner filed a counter opposing the application. The trial Court passed a final decree and it is stated that the same was executed through process of the Court. By that time, I.A.No.141 of 2004 was pending. It was taken up for hearing thereafter. The petitioner raised an objection as to the competence of the trial Court to consider the application for mesne profits, on two grounds. The first was that neither the preliminary decree nor the final decree provided for grant of mesne profits. The second was that once the final decree was passed, it is not competent for a Court to determine or award mesne profits. Through its order, dated 21.10.2009, the trial Court allowed the I.A. Hence, this revision. Sri C.Prakash Reddy, learned counsel for the petitioner, submits that in the absence of specific direction in the preliminary decree, there was no basis for respondent No.1 to file an application for mesne profits. He contends that the relief, if any in this behalf could have been granted before or along with the final decree and not thereafter. He places reliance upon certain precedents. Sri O.Manohar Reddy, learned counsel for respondent No.1, on the other hand, submits that it is not necessary in a suit for partition that a prayer for mesne profits must be made nor is it essential that relief on those lines must find place in the preliminary decree. He submits that it is always competent for a party to the suit for partition to claim mesne profits. He too places reliance upon some decided cases. The only question that arises for consideration in this revision is as to whether the application filed by respondent No.1 for mesne profits was maintainable? The objection raised by the petitioner is two-fold, namely that the application cannot be maintained unless specific prayer for that purpose was made in the suit and the relief was granted in the preliminary decree. The second objection is that even where it is otherwise permissible, the relief as regards mesne profits can be granted only before the final decree was passed. The justification pleaded for this is that an order awarding mesne profits partakes the character of final decree and there cannot be more final decrees than one, in a suit for partition. As regards the first contention, it needs to be seen that a suit for partition has several characteristics of its own. The first is that it is not an adversarial litigation pure and simple, where the plaintiffs and defendants stand pitted against each other. In a suit for partition, some of the defendants can very well support the plea of the plaintiffs. The task before the Court would be to find out as to whether the suit schedule properties are liable to be partitioned and to determine the shares of the respective parties. Coming to the stages, unlike in most of other suits, a preliminary decree is passed as to the availability of the property for partition and determination of shares and that in turn is followed by final decree proceedings. A decree in ordinary suits and a final decree wherever required to be passed, would normally terminate the respective suits. However, in case of partition suits, there can be more preliminary decrees than one. Explanation to Section 2 (2) C.P.C. provides assistance to understand this phenomenon. Even while passing a final decree, if the Court leaves some aspects covered by the preliminary decree unattended to, the suit continues to be pending and it would be competent for the Court to pass a partial final decree dealing with left over aspect. The claim for mesne profits is treated almost as an inseparable part of the plea for partition. The Courts went to the extent of holding that even in the absence of a prayer for ascertainment of future mesne profits and though the preliminary decree does not contain any direction for ascertainment of profits, such an exercise can be undertaken at the stage of final decree proceedings. A Division Bench of this Court in Kasibhatla Satyanarayana Vs. Kasibhatla Mallikarjuna Sastrulu[1] has discussed the law on this aspect and held as above. The following observation made by the Full Bench of Madras High Court in Basavayya Vs. Guravayya[2] was quoted with approval: “Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit, which for one reason or another, continues to be pending, there is nothing in the Civil Procedure Code prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry. The Court may, in the exercise of its discretion refuse enquiry into future mesne profits or the Court from ordering such an enquiry leaving the decree-holder to a fresh suit for such profits. If it does order an enquiry it is found to incorporate the result in a final decree. Unlike Order 20 Rules 13 and 16 and Order 34 Rules 2,4, and 7 C.P.C. Order 20 Rule 12 is not mandatory and does not insist on a preliminary decree containing all the directions referred to in Rule 12. There is no express or implied prohibition in the Civil Procedure Code against awarding possession and directing an enquiry into future mesne profits by successive adjudications in a pending suit though the normal ordinary procedure would be to pass a preliminary decree awarding possession and also direct an enquiry into future mesne profits. Swaminatha Odayar Vs. Gopalaswami Odayar, 1938-2 M.L.J. 704: (AIR 1939 Mad 81). In any case an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit, cannot be said to be without jurisdiction.” Hence, the plea that the application for mesne profits was not maintainable since the preliminary decree was silent on this aspect, cannot be accepted. Coming to the second ground urged by the petitioner, it is no doubt true that the final decree was passed before the order under revision was pronounced. In B.N.Thiagarajan Vs. B.N.Sundaravelu[3], the Madras High Court took the view that an application for mesne profits cannot be maintained after the final decree is passed. In the instant case, the application for mesne profits was filed even while the proceedings for final decree were pending. Therefore, it cannot be said that the ratio laid down by the Madras High Court would apply to the facts of the case. I n Mokkapati Nageswara Sastry Vs. N.L.Narasimha Rao[4], a learned Single Judge of this Court held that an application for mesne profits can be maintained even after the final decree was passed. That arose out of a compromise decree in a suit for partition. It is debatable as to whether an observation made in such proceedings can be treated as a ratio decidendi for the proposition that an application for mesne profits can be filed even after the final decree is passed. There may be a possibility for maintenance of such applications in case the final decree by itself did not terminate the suit on all aspects. However, once the suits stand terminated with a comprehensive final decree, an application filed thereafter for final decree cannot be entertained, just as any other interlocutory application other than the one filed for the relief of review or the one under Order 9 C.P.C. Once the suit is disposed of, an application for mesne profits also cannot be filed after the suit has been comprehensively disposed of through a final decree. In the instant case, the final decree no doubt was passed, but it cannot be deemed to have covered the relief claimed in the application that was pending before it was passed. To that extent, the final decree must be deemed to be partial, not covering the relief of mesne profits, which was very much pending adjudication before the Court. For the foregoing reasons, the civil revision petition is dismissed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J Dt: 22.12.2010. Note: L.R. copy to be marked. (B/o) kdl [1] AIR 1960 A.P. 45 [2] AIR 1951 Madras 938 [3] AIR 1972 Madras 216 [4] 1983 II Andhra Weekly Reporter 110