IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1466 OF 2009 Dr.Rustom Behramji Colah (Deceased) & Ors. ...Petitioners V/s. M/s.Bharat Petroleum Corporation Ltd...Respondents ...... Mr.P.S.Dani for Petitioners. Mr.Shashi K.Jain for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 17, 2009. MARCH 17, 2009. MARCH 17, 2009. P.C. 1. Heard Counsel for the Petitioners. 2. In my opinion, the Court below has rightly rejected the Notice of Motion on the finding that in the present case, no relief of mesne profit was prayed by the Petitioners in the Suit as filed. In any case, the decree passed by the Trial Court was simplicitor for possession and no observation regarding mesne profit was made. That decree has : 2 : become final. 3. In the circumstances, reliance placed on the decision in the case of Babburu Basavayya & Babburu Basavayya & Babburu Basavayya & Ors. vs. Babburu Guravayya & Anr. reported in Ors. vs. Babburu Guravayya & Anr. reported in Ors. vs. Babburu Guravayya & Anr. reported in AIR (38) 1951 Mad. 938 (Full Bench) AIR (38) 1951 Mad. 938 (Full Bench) AIR (38) 1951 Mad. 938 (Full Bench) will be of no avail. As a matter of fact, the observations in the said decision are in the context of sharing of profits accruing from lands pending the Suit for partition between the family members. It is not a case of simplicitor Suit for possession and mesne profit. On the other hand, the Apex Court in the case of R.S.Maddanappa (deceased) after him by his R.S.Maddanappa (deceased) after him by his R.S.Maddanappa (deceased) after him by his legal representatives vs. Chandramma & Anr. legal representatives vs. Chandramma & Anr. legal representatives vs. Chandramma & Anr. reported in AIR 1965 SC 1812 reported in AIR 1965 SC 1812 reported in AIR 1965 SC 1812, in Para 17 while referring to its earlier decision in the case of Mohd. Amin v. Vakil Ahmed reported in 1952 SCR 1133 has noted that if the Plaintiffs had not claimed mesne profits at all in their Plaint but the High Court passes a decree in the Plaintiffs favour not only for possession but also for mesne profits, that cannot be countenanced. 4. To get over this position, Counsel for the : 3 : Plaintiff submits that at least the relief of future mesne profits can be considered for which reliance is placed on the latter part of Para 17 of the same Apex Court Judgment. Once it is noticed that no relief of mesne profit was claimed and no decree in that behalf has been granted and the decree has been allowed to become final, the question of Court entertaining Application for future mesne profit after the execution of the decree does not arise as it has become functus officio. 5. In the circumstances, no interference in exercise of writ jurisdiction is warranted. Dismissed. 6. At this stage, Counsel for the Petitioners submits that this decision should not come in the way of the Petitioners in filing substantive Suit for damages against the Respondents and that Suit will have to be decided on its own merits. It is not necessary to clarify the position except to observe that such Suit, if filed, will have to be decided in accordance with law on its own merits. : 4 : A.M.KHANWILKAR, J.