A party cannot be allowed to give up a right deliberately and then seek to revive it after a long lapse of time.

JUDGMENT :- This revision petition is against the order of the learned District Munsiff of Tirunelveli in I.A. No. 445 of 1953 in O. S. No. 453 of 1941.

2. The suit itself was one for partition filed in 1941, but the issues were framed on the 6th April 1942. The suit being for partition among two brothers, the relevant order of the Civil Procedure Code and the rule applicable to the case would be O. XX, R. 18 and not R. 12. Much time need not be spent on this question as to which exactly is the rule that applies to suits for partition.

Some four years after the issues were framed, there was a compromise entered into between the parties and, in pursuance of the compromise, a preliminary decree was passed on the 19th March 1946. Though in the suit there were issues raised relating to the taking of accounts and the liability of the defendants to the plaintiff in respect of such accounts, still, in the preliminary decree that was passed on the 19th March 1946, there was absolutely no mention, not even whisper, about accounting between the parties, or about any claim for mesne profits arising out of such accounts being taken between the parties.

3. On the other hand, as per the preliminary decree passed in pursuance of the compromise, paragraphs 3, 4 and 5 reserve several rights of the parties to be settled at a later stage, viz, at the stage of the final decree. But no such reservation has taken place in respect of the accountability between the parties as to mesne profits or otherwise. Therefore, construing the terms of the compromise decree, it would not be unreasonable to hold that the parties while deliberately reserving their rights in other respects to be settled and adjusted at the time of the final decree, deliberately left out of consideration the rights of parties in regard to the mesne profits or accounts.

4. The position did not stand there. The final decree in this case was passed on the 20th September 1949, and even at the stage of the final decree, no question was raised with regard to the mesne profits in respect of the properties which were being divided between the plaintiff and the defendants. The final decree only sets forth that the plaintiff was allotted item 1 in Sch. 1 and items 2, 3, 8, 16 and 17 in Sch. II, in addition to the item allotted to him by the Commissioner, that the defendants 1 to 3 are allotted items 1, 4, 5 and 6, 7 and 9 to 15 in Sch. II.

5. After this final decree was passed, possession was taken by the plaintiff of his share allotted to him, under the final decree in the properties comprised in the suit. Neither at the time of the final decree, nor even at the time of the taking of possession did the plaintiff think of approaching the Court for an enquiry into the question of mesne profits and allotment of his share of the mesne profits of the properties in the suit It is common ground that possession was taken on the 17th April 1950.

6. It is only on the 16th April 1953 that the plaintiff thought of filing an application under O. XX, R. 12 C. P. C., for an enquiry into the mesne profits payable by the respondents to the petitioner in respect of the properties set out in plaint Schs. I and II, and to pass a decree in favour of the plaintiff against defendants 3 and 9, for the plaintiffs share in the mesne profits ascertained in the said enquiry. It must be observed that this application for mesne profits related only to the properties that were allotted to the plaintiff in the final decree.

7. Though the application was taken out under O. XX, R. 12, still it does not necessarily mean that the application should be dealt with by the Court only under that order and rule. If a mistake has been committed in mentioning a provision of law under which an application is made, it does not preclude the Court from deciding the matter under the correct provision of law, viz., O. 20, R. 18. The learned District Munsif must be presumed to have decided this case under the correct provision of law. Ther