THE HON’BLE SRI JUSTICE C.V.RAMULU APPEAL SUIT No.2182 of 1992 JUDGMENT: This appeal, under Section 96 of the Code of Civil Procedure, is directed against the order, dated 19.01.1990, passed in I.A.No.81 of 1984 in O.S.No.6 of 1978 (old I.A.No.110 of 1982 in O.S.No.6 of 1978 on the file of the learned Subordinate Judge, Chodavaram) on the file of the learned Subordinate Judge, Anakapalle. Before going into the merits of the case, it is necessary to notice that the suit in O.S.No.6 of 1978, filed by respondents 1 and 2 herein for partition of the plaint schedule properties, mesne profits and other reliefs, was decreed by way of preliminary decree, which attained finality. Praying the Court below to appoint a Commissioner for ascertainment of mesne profits as per the terms of the said preliminary decree, respondents 1 and 2 herein filed the present I.A.No.81 of 1984 in O.S.No.6 of 1978 (old I.A.No.110 of 1982 in O.S.No.6 of 1978 on the file of Sub-Court, Chodavaram), and the Court below, appointed Sri N.Sanyasirao, Advocate, as Commissioner to ascertain the mesne profits for suit schedule lands, as per the preliminary decree, and file his report. Accordingly, on 04.07.1985, the Commissioner filed his report dated 01.07.1985, and basing on the said report and also taking into consideration the objections filed thereto, the material made available on record and the contentions put forth by both parties, the Court below, by the impugned order dated 19.01.1990, allowed the present I.A., granting mesne profits of Rs.16,667-25 for the years 1978- 79 to 1980-81 including interest to the petitioners and the 4th respondent therein, and further ordering that the petitioners and the 4th respondent therein are entitled to future interest at 6% per annum on Rs.10,498-50 ps. from the date of the order till the date of realization. Aggrieved thereby, the present appeal suit is filed. Learned counsel for the appellants submits that the learned Subordinate Judge failed to note that the respondents, having got the earlier petition filed by them, for the very same relief sought in the present application, dismissed, as having failed to deposit the Commissioner fee as directed by the Court, and filing of the present petition for the same relief, without having a right and without the leave of the Court to file it, is barred by principles of res judicata. The learned counsel also submits that the learned Subordinate Judge, having held that there are no irrigation projects regulating water supply for both the crops in the village to the lands in question, ought not to have fixed the quantity of paddy and sugarcane at the rate fixed by him, and thus, the Court below has erred in accepting the Commissioner’s report in fixing the mesne profits at Rs.4,416/- per year for both seed and routine crops. The attainment of finality of the judgment and decree made in the suit is not in dispute and the eligibility for mesne profits is also not in dispute. The only dispute raised in this appeal is that as on the date of ascertainment of mesne profits by the Commissioner, there were no two crops and the lands in question were not irrigated by the project water, and thus, the mesne profits fixed by the Commissioner were not proper. However, due to efflux of time, the cause in this appeal does not survive for adjudication, and the appeal is liable to be dismissed, as having become infructuous. The appeal suit is, accordingly, dismissed as infructuous. There shall be no order as to costs. _____________ C.V.RAMULU,J 22.03.2010 v v