JUDGMENT: This appeal raises a short question relating to the interpretation of a preliminary decree which was passed in Suit No. 36 of 1940. That suit was brought by some sons against their father and his alienee. The suit was for partition and separate possession of the shares of the sons in the joint family properties. A preliminary decree was passed on 22-12-1941 inter alia, that .. decree directed that the sons shall obtain future mesne profits from the date of the suit till delivery of possession. The direction was given against the alienees of the father. The alienees were defendants Nos. 1 and 2. They are now represented by a Receiver appointed in another litigation. The decree was assigned by the sons to one Radhakisan who is respondent No. 4. He filed a darkhast No. 1135 of 1943 for partition of the properties in accordance with the directions given in the preliminary decree. It is not disputed that he got on 10-9-1951 actual possession of the properties allotted to the shares of the sons. Thereafter, respondent No. 4 filed an application on 4-12-1953 for ascertainment of the mesne profits in respect of the properties allotted to the shares of he sons from the date of the suit till the date of delivery of possession. Thus the period for which respondent No. 4 claimed mesne profits was from 8-1-1940, the date of the suit, to 10-9-1951, the date on which he obtained possession of the properties allotted to the shares of the sons. The period is 11 years and 8 months and 2 days. Mesne profits have been calculated at the rate of Rs. 75/- per annum. The share of the sons has been ascertained to be 3/4th. Accordingly, mesne profits have been awarded to respondent No. 4 at the rate of Rs. 56/4 per year. The contention of the Receiver, who represents the interest of the alienees of the father, is that, though the decree states that the mesne profits shall be awarded until delivery of possession without specifying that the period shall be restricted to a period of three years from the date of the decree, in law, the decree should be construed as awarding mesne profits to the sons only up to three years from the date of the decree and not until 10-9-1951. At first, I was not inclined to agree with the contention of Mr. Walawalkar. This disinclination was due to the provisions contained in section 97 of the Civil Procedure Code, which states that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. A plain reading of the decree itself would show that mesne profits were awarded to the sons up to the date of delivery, and it did not in specific terms lay down that the mesne profits- were to be restricted up to a period of three years from the date of the decree. Hence if the defendants Nos. 1 and 2 were aggrieved by the decree they should have preferred an appeal and got the direction for payment of mesne profits restricted to 3 years. However, Mr. Walawalkar, relied upon two authorities in support of his proposition. In view of those authorities, I cannot but come to the conclusion that the point raised by Mr. Walawalkar is right and must be held. The first ruling on which he relies is reported in Narayan Govind Manik v. Sono Sadashiv. ILR 24 Bom 345. In that case, their Lordships had to deal with a decree which was passed in terms which were similar to the terms of the decree in the present appeal. That decree was passed under section 211 of the Civil Procedure Code. The decree stated that mesne profits were to be awarded till delivery of< possession. But, their Lordship came to the conclusion that the decree must be construed subject to sub-section (2) of section 211 and, therefore, the plaintiff in that case was held not entitled to re-cover mesne profits for more than three years from, the date of the decree. Mr. Chavan, who appears on behalf

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