JUDGMENT.— The 1st defendant in the suit is the appellant in this second appeal which arises out of the final decree proceedings in a suit for partition instituted by the first respondent herein in O.S. No. 2423 of 1961, on the file of the learned 5th Assistant Judge, City Civil Court, Madras.

2. The facts are not in dispute. The first respondent instituted the suit for partition and separate possession of her 3/4 share in the property mentioned in the schedule to the plaint or in the alternative for a moiety thereof and also for an account of the income collected by the appellant and for the appointment of Receiver and other incidental reliefs. By a preliminary decree dated 24th December, 1963, the first respondent herein was granted a decree for partition in respect of a half share of the suit property and clause (2) of the preliminary decree provided that the first respondent shall also be at liberty to apply for the ascertainment of the income from the property and the allotment of her share therein. There was an appeal against this preliminary decree in A S. No. 201 of 1964 to this Court, which was disposed of on 9th September, 1970 with certain modifications. Pursuant to the preliminary decree granted in favour of the first respondent as modified by this Court, she filed If A. No. 1877 of 1971 for the appointment of a Commissioner to divide the property by metes and bounds and also for ascertainment and payment of her share of the income from the property in question. A Commissioner was appointed and he submitted a report with reference to the suggested mode of allotment of the property and also the quantum of income referable to the share of the 1st respondent. The trial Court, on a consideration of the report of the Commissioner, by its Judgment and decree dated 10th January, 1973, allotted the southern portion of the suit property to the 1st respondent and the northern portion to the appellant. It further directed that a sum of Rs. 4,160 be paid to the 1st respondent by the appellant towards her share of income. Aggrieved by this, the appellant preferred an appeal in A S. No. 243 of 1974, before the learned 4th Additional Judge, City Civil Court, Madras. The appellate Court also confirmed not only the mode of allotment, but also felt that the assessment and ascertainment of the share, of the income of the first respondent at Rs. 4,160 was not only reasonable, but unexceptionable. In the result, the appeal was dismissed. It is against that the appellant has now come up before this Court in second appeal.

3. The only contention that is urged by the learned counsel for the appellant in this second appeal is that the maximum period for which the first respondent Could be awarded her share of income is three years from the date of the decree and in this case, the Courts below should not have, therefore, awarded mesne profits for a period in excess of that period and that the award of mesne profits thus given is not in conformity with the provisions of the Civil Procedure Code. viz., Order 20, rule 12, It may immediately be stated that this contention was not raised in the Courts below in the form in which it is now presented before this Court. However, since it is a point of law, which does not call for any further investigation of facts, the learned counsel for the appellant was allowed to raise the same.

4. In order to appreciate this contention, it becomes necessary to examine the terms of the preliminary decree and ascertain whether Order 20, rule 12 of the Civil Procedure Code would apply to instant came at all. The relevant clauses of the decree in O.S. No. 2423 of 1961 run thus:

"1. That the property mentioned in the schedule be divided into two equal shares and the plaintiffs be allotted one such share;

2. that the plaintiff shall be at liberty to apply by way of a separate application for ascertaining the income from the property and allotment of her share therein.“

On appeal in A.S No. 201 of 1964, this decree, in so f

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