AIR 1949 MADRAS 134

Madras High Court

Hon'ble Judge(s): Govindarajachari , J

Civil P.C. (5 of 1908) , O.20 R.12— Preliminary decree in partition suit directing ascertainment of mesne profits on application in execution - Decree in so far as it directs application to be in execution is erroneous - Proper application is one under O.20, R.12 - There is no limitation for it Limitation Act (9 of 1908) , Art.181— The proper way of dealing with a preliminary decree in a Partition suit which directs the ascertainment of mesne profits by an application in execution, is to treat it as a decree declaring the plaintiff's right to mesne profits coupled with a direction that the mesne profits may subsequently be ascertained in an application to be filed for the purpose. In so far as the decree directs that the application must be one in execution, it is an unnecessary and incorrect addition and cannot be given effect to. Otherwise by an erroneous decree of the nature this Court would not only lay down a separate law of procedure for the parties which is entirely at variance with the law of the land but would also be curtailing the period within which an application can be made by a successful plaintiff. For instance, if it were to be made in execution, it would involve a @page-Mad135 curtailment of the period of limitation to three years under Art. 181. Proper application....