K VENKATA SUBBAIYA Vs. K VEERAIYYA

JUDGEMENT

(1.) This appeal raises a simple question of law. The 1st repondent herein filed I. A. No. 461 of 1948 in O. S. No. 318 of 1939, District Munsifs Court, Repalle, on 5.7.1948, for the ascertainment of profits from the date of the plaint. The suit in which the application was filed was instituted in 1939 for partition and separate possession of joint family properties and the preliminary decree was passed on 23.8.1946. The final decree was passed on 31.8.1948. long after the application for the ascertainment of future profits was filed. The ground on which the District Munsif of Repalle dismissed the application was that the final decree had been passed by the time the application was taken up for hearing on 17.9.1948.On appeal, the Subordinate Judge of Tenali rightly held that the delay in the disposal of the application ought not to prejudice the 1st repondent herein in the determination of his legal rights. He followed the decision of Somayya J. in -- Reghava Mannadiar v. Theyunni Mannadiar, AIR 1947 Mad 106 (A) and held that though there was no prayer in the plaint for the ascertainment of future profits from the date of suit and though there was no specific direction in the preliminary decree in the partition suit for such ascertainment, the Court is bound under the provisions of O. 20, R. 18, Civil P. C., to direct such an enquiry and consequently set aside the order of the trial Court and remanded the application to the District Munsif for fresh disposal and ascertainment of profits. As against the Order of remand, the C. M. A. No. 518 of 1949 has been filed before this Court.

(2.) The decision of Somayya J. relied in by the Subordinate Judge was approved by a Full Bench of the Madras High Court in -- Basavayya v. Guravayya, AIR 1951 Mad 938 (FB) (B). The legal position is summed up at pp. 941 - 942 in the rollowing terms :

(3.) As held by a Full Bench of this Court in -- Subbarayudu v. State, (S) AIR 1955 Andhra 87 (C), I am bound by the Full Bench decision of the Madras High Court already referred to (which has approved the decision of Somayya J. in -- Raghava Mannadiar v. Theyunni Mannadiar (A), and following that decision I hold that the Order of remand is perfectly justified.