In a partition suit, the court has jurisdiction to appoint a Commissioner to ascertain mesne profits even after passing the final decree. Mesne profits form part of the corpus and are subject to division. Limitation does not apply to future profits sought from the date of plaint.

1. Defendant in O.S. No. 5 of 1960, on the file of the Sub Court, Pattukkottai, is the revision petitioner.

2. Suit filed by the plaintiff was one for partition and separate possession. In the plaint, there was also a relief for mesne profits. The suit was decreed on 8-2-1965 and a preliminary decree was passed. There was an appeal before this Court as A.S. No. 339 of 1965, which was also dismissed. An appeal before the Supreme Court also failed. A final decree was passed in I.A. No. 303 of 1971 on 24-1-1979. There were also several proceedings between the parties, and, in I.A. No. 423 of 1991, an application was made by the 1st respondent herein to appoint a Commissioner to ascertain the mesne profits. It is against the order passed in the said I.A., the present Civil Revision Petition is filed.

3. It will not be out of place to mention that in a proceeding for passing final decree, against the order of the court below, an appeal was filed before this Court, and the same is pending as A.S. No. 260 of 1993.

4. In this revision by the defendant, against the order of the court below, where by it appointed a Commissioner to ascertain the mesne profits, it is contended that once a final decree is passed in a partition suit, the court has no jurisdiction to appoint a Commissioner to ascertain the mesne profits. The Court has become functus officio and nothing more survives once a final decree is passed.

5. It is further contended that the ascertainment of mesne profits for a period exceeding three years is also without jurisdiction.

6. The said contention of learned counsel for the petitioner is disputed by respondents counsel. According to them, law does not prohibit the passing of more than one final decree. Question of mesne profits is also an item over which the parties are at issue, and so long as that matter has not been decided, legally the suit is deemed to have been pending, and final decree must set at rest all disputes between the parties, and so long as that is not done, plaintiff is entitled to move for ascertaining the profits and is also entitled to get his due share. Further, learned counsel also submitted that even now the dispute is pending adjudication especially in view of the tendency of A.S. No. 260 of 1993 before this Court.

7. Let us now consider which of the rival contentions has to be accepted.

8. Learned counsel for the petitioner relied on a decision reported in (1951) 2 M.L.J. 176 = 64 L.W. 669 (Full Bench) ( Babburu Basavayya and others v. Babburu Guruvayya and others ), wherein their Lordships held thus:

“The claim of a plaintiff suing for partition and his share of the profits accruing from the lands pending suit is not, properly speaking, a claim for “mesne profits” and Order 20, Rule 12, Civil Procedure Code, has no application to such a case”

Learned counsel also relied on the decision reported in 1972-1-M.L.J. 230 = 85 L.W. 95 ( B.N. Thyagarajan and others v. B.N. Sundaravelu ), wherein a learned Judge of this Court has held thus:—

“Where a preliminary decree awarding possession contains direction for enquiry into the future mesne profits, that part of the suit relating to the mesne profits continues to be pending and the decree holder might move the Court to hold an enquiry and pass a final decree awarding such profits without the necessity of filing an application within the period under Article 181 of the Limitation Act of 1908. Where a decree awarding possession is silent with regard to enquiry into future mesne profits and th e decree has not completely disposed of the suit which, for one reason or another, continues to be pending, there is nothing in the Code prohibiting the decree-holder from applying to the Court for an enquiry into future mesne profits or the Court from ordering such enquiry; and where no relief for mesne profits is claimed in the plaint and the preliminary decree does not provide for such relief, the relief for mesne profits can be claimed even for the first t