An application for ascertainment of future profits in a partition suit cannot be filed after the final decree has become final and the appellate court has not given any directions in regard to profits.

K. SUBBA RAO, C.J. : -

This second appeal is directed against the decree and judgment of the Court of the Subordinate Judge, Srikakulam confirming that of the District Munsif, Srikakulam, dismissing the petition filed by the appellant for ascertainment of mesne profits.

2. One Nakka Appala Naidu filed O. S. No. 555 of 1942 in the Court of the District Munsif, Srikakulam, for partition of the plaint schedule property against defendants 1 to 3 and obtained a preliminary decree for partition on 9-9-1944. In the plaint, there was no prayer for the ascertainment of future profits. That decree was modified in Second appeal on 13-10-1949. The preliminary decree did not in terms give any direction for the ascertainment of future profits. The decree-holder transferred all his rights under the preliminary decree and also his claim for profits to the appellant, and the transfer was recognised by the Court. On a petition filed by the transferee decree-holder i.e., the appellant, a final decree was passed on 10-12-1951.

The judgment-debtors preferred an appeal against the final decree to the Subordinate Judges Court, Srikakulam, being A. S. No. 51 of 1952. The Subordinate Judges Court modified the final decree on 5-2-1952. Pending the said appeal, the appellant filed I. A. No. 736 of 1952 in the Court of the District Munsif for ascertainment of future profits. The filing of this application was not brought to the notice of the Subordinate Judge at the time of the disposal of the appeal against the final decree and no directions were obtained from him in this behalf. The final decree as modified did not contain any directions in regard to future profits. The District Munsif and, on appeal, the learned Subordinate Judge held that, as the final decree was passed, the present petition was not maintainable and, on the ground dismissed it. Hence, the second appeal.

3. The only question in the second appeal is whether, in the aforesaid circumstances, a petition for the ascertainment of future profits would lie.

4. Learned counsel for the appellant contends that, in a partition suit, there can be more than one final decree, that the claim for mesne profits is part of the subject-matter of the suit, that so long as the claim is not disposed of by the Court, a subsidiary decree for ascertaining future profits could be made and that, in the present case, an application for future profits was filed before the appeal against the final decree was disposed of and, therefore, the Court had to ascertain mesne profits and to incorporate the same in a subsidiary decree.

Learned counsel for the respondents counters this argument thus : In view of the recent decision of the Supreme Court, a Court has no power to give a direction for future profits and that, in any view, as the appellant did not ask for any direction in regard to that relief when the appeal against the final decree was disposed of, the application filed after the final decree made by the first Court was not maintainable.

5. A Full Bench of the Madras High Court held in Basavayya v. Guravayya, ILR (1952.) Mad 173 : (AIR 1951 Mad 938) (A), that an enquiry into profits received or realised by one or the other of the parties during the pendency of the suit for partition can be ordered by the Court either as part of the preliminary decree itself, or, subsequently as a step towards the passing of the final decree and, in either case, the result of the enquiry has to be incorporated in the final decree. After considering the relevant provisions and the decided cases on the subject, Viswanatha Sastri J., who delivered the judgment on behalf of the Full Bench, summarised the law at p. 185 (of ILR) : (at p. 943 of AIR) :

"A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree. In such a suit the Court has not only to divide the common properties but has also to adjust the equities arisin