IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18-02-2025 CORAM THE HONOURABLE MRS JUSTICE T.V.THAMILSELVI SA NO. 1059 of 2007 Kandasamy Asari, S/o.Venkatachala Asari, V.Pudhupallaiyam Village, Kandachipuram Post, Thirukoilur.

Appellant(s)

Vs

1. Panjachara Mudaliar,S/o.Arumuga Mudaliar

2. Viruthambal Ammal W/o Amirthalingam 3. Perumal Chettiyar w/o Kesava Chettiyar

4. Vasuki w/o Ganesa Mudhaliar Respondent(s)

PRAYER : This Second appeal has been filed under Section 100 of CPC, against the judgment and decree in A.S No. 138 of 2003, dated 31.01.2006 on the file of II Additional Subordinate Judge, Villupuram in partly allowing the judgment and decree in I.A No. 98 of 2000 in O.S No. 490 of 1979 dated 23.07.2002 on the file of the Ist Additional District Munsif Court, Thirukoilur.

SA NO. 1059 of 2007 For Appellant(s):

M/s V.Srimathi For Respondent(s): M/s.V.Balaji For R 2 R3 - Died No Appearance - R1, R4

JUDGMENT

The appellant herein/plaintiff filed the suit in O.S No. 490 of 1979 on the file of the I Additional District Munsif Court, Thirukoilur, against the respondents herein/defendants for redemption of mortgage and for mesne profit and the defendants also contested the said suit. On hearing both sides, the Trial Court passed the preliminary decree on 31.08.1981 in respect of redemption of mortgage. Challenging the said findings the defendants preferred an appeal in A.S No. 221 of 1981 which was dismissed on 20.02.1982, against which, the second appeal was preferred in S.A No. 1531 of 1982 before this court on 24.11.1994. Thereafter, final decree petition was filed in I.A No. 1351 of 1995, in which, delivery was ordered on 02.02.1996 and thereafter through EP No. 268 of 1996 the plaintiff took delivery of the suit property on 09.11.1998. Thereafter, the appellant herein/plaintiff preferred an application under Order 20 Rule 12 of CPC, to determine the mesne profit after taking delivery of the suit property but the said application was dismissed stating that the application was not maintainable and as barred by limitation. The reason assigned by the Trial Court is that while passing the preliminary decree there is order in respect of mesne profit. Even after passing the final decree the plaintiff has not taken any steps to file the application for mesne profit but only after delivery of the property the plaintiff filed the application as such is not maintainable and dismissed. By relying the ratio laid down in 1999 (2) CTC, wherein it is held that immediately passing the preliminary decree the application for mesne profit should have been filed but in the present case the plaintiff preferred the appeal only after taking delivery of the suit property as such is clearly barred by the limitation. Accordingly, said application was dismissed. Against which, A.S No. 138 of 2003 was preferred before the II Additional Subordinate court, Villupuram, the first appellate Court framed the following points for consideration:

i. Whether this application is I.A No. 98 of 2000 under Order 20 Rule

12 CPC is barred by limitation ?

ii. Whether the application for determination of the mesne profit is not maintainable after the passing of the final decree for delivery of suit property and when there was no grant of relief about the mense profits in the final decree especially when there is a relief granted in the preliminary decree for determination of the mesne profits under Order 20 Rule 12 CPC .

3. It so, what is the quantum of mesne profits ?

4. To what relief the appellant/petitioner is entitled to ?

2. By relying ratio laid down in the judgement reported in 1988(2)

L.W. 217 at page 219. The first appellate Court held that application as such is maintainable and it is not barred by limitation. Subsequently, while deciding the point number 2 the first appellate court held that as per provisions under Order 20 Rule 12(c ) (iii) CPC the valuation of mesne profits can be awarded only for three years from the date of decree for possession till the date of deliver