AIR 1949 MADRAS 743

Madras High Court

Hon'ble Judge(s): Mack , J

Civil P.C. (5 of 1908) , O.20 R.16— Partition suit - Prayer for past and future mesne profits - Specific court-fee paid on past mesne profits - No provision for mesne profits made in preliminary decree - Provision can be made in final decree upon application by plaintiff. Though the Code of Civil Procedure does not specially lay down any procedure in regard to a composite action for partition and possession, the Court may pass a final decree for mesne profits even if it is not preceded by a preliminary decree. Where a preliminary decree for partition is silent as to the claim for mesne profits, the parties are not precluded from applying, or the Court from awarding, mesne profits by its final decree, specially when the plaint specifically asked for past mesne profits and paid court-fee on this relief. In such a case it cannot be said that because the preliminary decree is silent about this relief it must be deemed that this relief was negatived by the Court'.(Para 2) Annotation : ('44-Com.) Civil P. C. O.20 R. 18 N. 6.