An application for ascertainment of mesne profits and for the passing of a final decree is not governed by Article 181 of the Limitation Act.

( 1 ) THE question raised in this Civil Revision Petition is whether an application for ascertainment of mesne profits and for the passing of a final decree in a suit for partition, for mesne profits and for accounts is governed by Article 181 of the Limitation Act. The suit was filed by the respondent for partition of the plaint A and B scheduled properties and for delivery of one such share to the plaintiff and for mesne profits and accounts, and it was decreed on 20th February, 1948. The petition giving rise to this Civil Revision Petition was presented on 13th July, 1953, before the Subordinate Judge, Vijayawada, for the appointment of a commissioner for ascertainment of mesne profits and for the passing of a finaldecree. The petition was opposed by the judgment-debtors on the ground that it was barred by limitation as obviously it was beyond three years of the passing of the preliminary dicree. The basis of this defence was Article 181 of the Limitation act.

( 2 ) THE above objection was overruled by the trial Court which thought the petition did not fall within the scope of Article 181 of the Limitation Act. For this conclusion reliance was placed on a judgment of the Calcutta High Court in Bhushan Chandra v. Chabimoni Dasi, A. I. R. 1948 Cal. 363. . It also observed that in any event the petition was saved because it was filed within three years from the date when the plaintiff attained majority.

( 3 ) THIS order of the Subordinate Judge is attacked by Mr. Krishnamurthy as an erroneous one. According to the learned counsel, Article 181 of the Limitation act is attracted to an application for ascertainment of mesne profits and also for the passing of a final decree. This argument is founded on Rama Rao v. Sreeramamurty, (1936) 71 M. L. J. 388 where a Bench of the Madras High Court decided that ascertainment of mesne profits should be applied for within three years of the passing of the preliminary decree, approving the view expressed by Jackson, J. , in Timmaraju v. Narasimha Raju. , (1928) 54 M. L. J. 665. This ruling does support the contention of Mr. Krishnamurthy but, it was overruled by a Full Bench of the Madras High court in Ramasubrahmanya Pattar v. Karimbil Pati. , (1940) 1 M. L. J. 54 : I. L. R. (1940) Mad. 372 (F. B. ).

( 4 ) THERE also an application for ascertainment of mesne profits in pursuance of the decree of the trial Court was filed under Order 20, rule 12, civil Procedure Code, which is in the following words after the lapse of three years from the date of the judgment :-"12. (1) Where asuit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may pass a decree- (a) for the possession of the property ; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits ; (c) directing an inqury as to rent or mesne profits from the institution of the suit until- (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession of the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three yearsfrom the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry, (3) Where an appellate Court directs such an enquiry, it may direct the Court of First Instance to make the inquiry ; and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decree-holder inquire and pass the final decree. "defence similar to the one here was put forward. This was negatived by the Full bench which expressed the opinion thar "a person who obtained a preliminary decree whether in the trial court or on appeal had the right to a final decree on mesne profits being ascertained, irrespectiv

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