The main legal point established in the judgment is that the claim for mesne profits is subject to a limitation period of three years from the date of disposal of the appeal, and there can be no claim for mesne profits after the passing of the final decree.

1. The petitioners are respondents 10, 12 and 13 in I.A.No.546 of 1998 in O.S.No.630 of 1975 on the file of the Subordinate Judge, Tiruchirappalli. It is a suit for partition.

2. Preliminary decree was passed on 7.2.1978 and final decree was passed on 13.1.992 in I.A.No.202 of 1978. The third defendant preferred an Appeal before this Court in A.S.No.128 of 1993 which suffered dismissal. Accordingly, the properties were allotted to the plaintiffs 2 and 3, and 4th defendant. The plaintiffs 2 and 3 and 4th defendant, thereafter, filed an application in I.A.No.546 of 1998 praying the Court to pass an order for mesne profits by way of accounting payable by the defendants/respondents on the basis of the report filed by the then Advocate Commissioner or to appoint a fresh Commissioner to determine the mesne profits or amount payable by way of accounting by the respondents to the petitioners.

3. In the affidavit, it is stated that previously, Thiru. K.S .Narayanan was appointed as Advocate Commissioner to determine the mesne profits. As per the estimate of the petitioners, the defendants are liable to pay Rs.25 lakhs from 1975 till today as mesne profits. The Court has not passed regarding the amount payable by the defendants by way of mesne profits or accounting.

4. In the counter affidavit filed by the respondents, it is alleged that even though preliminary decree and final decree were passed, the relief of accounting or mesne profits was negatived, the matter was taken up to the High Court and the question of availability of mesne profits was not raised and there also the question was not appealed against as to mesne profits and the matter reached a finality, in other words, the relief of accounting or mesne profits was denied. The petitioners did not agitate the matter by way of appeal or review in this regard, and they cannot seek such a relief which was already considered and negatived. By way of this application seeking such relief by alleging that mesne profits would be payable in several lakhs is nothing but a figment of imagination. It is beyond anyone's comprehension that for a small extent of property for any fractional share such huge amount would be determined as mesne profits. The final decree proceedings was terminated long ago and evidently, this application is filed belatedly after the relief was negatived and particularly, the petitioners themselves not having made any specific reservation in that regard, and viewed from any angle, the application is not maintainable. The relief of accounting cannot be equated to mesne profits and what is granted in the preliminary decree being the relief of accounting in the context of termination of proceedings in final decree in the fashion mentioned above. The claim is legally barred. The prayer is misconceived and is inconsistent with the pleadings containing preliminary decree. Hence, the petition may be dismissed.

5. The learned Subordinate Judge, without touching the merits of the matter, only considered the arguments of both sides and simply passed the order appointing the Advocate Commissioner Mr. P.R. Namasivayam, to fix the mesne profits and directed him to file a report by 21.11.03. This is the order which is challenged before this Court.

6. Point for consideration:-

Whether the plaintiffs 2 and 3 and the fourth defendant in the suit are entitled to get the relief of payment of mesne profits as prayed for by them?

7. Point: Neither of the parties produced copies. However, it is found in the preliminary decree that defendants 1 to 3 are liable to render accounts for the property in item 1 -B Schedule.

8. The learned counsel for the petitioners, Mr. Vinayak, who contends that inasmuch as plaintiffs 2 and 3, and 4th defendant have not applied for mesne profits, their right is barred by Order 20, Rule 18 CPC. His contention is that even in the course of trial, they did not ask for or pray for mesne profits and that the final decree was passed 5 years before I.A.No.