Order dropping proceedings vitiated.

1. The Civil Revision Petition arises out of I.A. No. 354 of 1976 in O.S. No. 24 of 1965 on the file of the District Munsif, Paramakudi, under the following circumstances. The revision petitioner is the plaintiff in the said suit, which was one for partition of his share in the suit properties. He also filed a petition for recovery of his share in the rents and profits derived from the properties. While the petition was disposed of, he was given liberty to file a subsequent petition for the same. The final decree was passed on 30th April, 1973, which came to be confirmed in the appeal and thereafter, he obtained delivery of possession in EP.85 of 1975 on 30th December, 1975. There were 11 shops in the suit properties and it appears that in respect of ten of them, a sum of Rs. 5 per mensem was collected as rent for each shop till 31st December, 1967 and thereafter, at the rate of Rs. 7 and for the remaining one, a rent of Rs. 10 per month was being collected. The petitioner for his share is entitled co Rs 6,150 by way of mesne profits and therefore, he took out the said interlocutory application for passing a decree for mesne profits.

2. The defendants-respondents filed a counter stating that the plaintiff filed the suit for partition saying that he was in joint possession. He paid court-fee under S. 37(2) of the Tamil Nadu Act 14 of 1955. At no stage of the proceedings the plaintiff claimed any mesne profits. Neither in the preliminary decree nor in the final decree was any provision made for enquiry into the mesne profits. The final decree, dt. 28th August, 1975 was the end of the proceedings and therefore, the present application was not maintainable and it had to be dismissed in limine. It was further contended that the petition was barred by limitation and the rent of Rs. 3/- or Rs-4 per month and the maximum rent received is only Rs. 7 per month and a sum of Rs. 25 had to be spent towards tax, etc.

3. The learned Munsif dismissed the application on the ground that inasmuch as the petitioner filed the suit alleging that he was in possession, he was not justified in asking for mesne profits. Consequently, he dismissed the petition. Thereupon C.M.A. No. 11 of 1977 was preferred to the District Court, Ramanathapuram at Madurai. That also ended adversely to the petitioner. Hence, the present revision to revise both the orders.

4. The only contention that is urged by the learned counsel for the petitioner is that notwithstanding the fact that there was a final decree, dt., 30th April, 1973, which did not provide for mesne profits, yet as regards future mesne profits at least, for which a plea could not have been raised at the time when the suit came to be filed, the application ought to have been allowed. In support of this contention, he relies on the decisions Manicka Mudaliar v. Munilakshmammal 86 L.W. 699, Varatharajulu Reddiar v. Venkatakrishna Reddiar I.L.R. 1967 1 Mad. 136=79 L.W. 395, Veerappa Gounder v. Sengoda Gounder 1975 1 M.L.J. 53=88 L.W. 68 (S.N.), and also Nalla Gounder v. Ramaswami 92 L.W. 97.

5. As against this, the learned counse for the respondent would urge that neither in the preliminary decree nor in the final decree was any provision made with regard to mesne profits. Under these circumstances, the plea of the revision petitioner that he would be entitled to mesne profits at least with regard to future date is unacceptable, because once a final decree is passed, thereafter the Court had no jurisdiction to equire into the mesne profits. Certainly, notwithstanding there being no provision made in the preliminary decree, the petitioner could have well asked for the same before the passing of the final decree but not later. In support of this, reliance is placed on Babburu Basavayya v. Bubburu Guruvayya A.I.R. 1951 Mad 938=64 L.W. 669 (F.B.) and Ponnusami Udayar v. Santhappa Udayar 1963 Mad. 171=75 L.W. 683. It is further contended that the decisions cited by the revision petitioner do not touch th