K HATIZA BEGUM Vs. K M USMAN PASHA
SUPREME COURT OF INDIA
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(1.)Despite service, the respondents have not appeared in-person or through counsel. We, therefore, proceed to decide the matter in their absence.
(2.)The plaintiff-respondents filed a suit for partition and allotment of separate half share in the property. The suit was decreed. The plaintiff-respondents put the decree in execution. The decree-holders filed an application under order 20, rule 12, Code of Civil procedure for enquiry into the future mesne profit. This was objected by the appellants, who are the judgment-debtors. The application of the decree-holder was allowed by overruling the objection raised by the appellants herein. The judgment-debtor-appellants thereafter filed a revision before the high Court, which was also dismissed. It is against the said judgment of the High court, the appellants have preferred this appeal.
(3.)Learned counsel appearing for the appellants urged that the judgments of the executing court as well as the High Court are erroneous inasmuch as the reliance on the decision reported in Rajajai Singh v. Ranganathappa [ilr 1986 (3) Karnataka 2985] and Gopalakrishna Pillai and Others v. Meenakshi Ayal and Others [air 1967 SC 155], were totally misplaced. We find substance in the argument. A perusal of record shows that the decree-holder in their plaint did not pray for the grant of any future mesne profit. It is also manifest from the decree passed by the trial court that the court did not grant either past and future mesne profit to the decree-holder. Further, the decree-holder did not move any application either for amendment of the plaint by incorporating prayer for grant of future mesne profit or amendment of the decree for grant of future mesne profit. Under such circumstances, it was not open to the executing court to direct the enquiry for ascertaining the future mesne profit under order 20, rule 12, Code of Civil Procedure. It is true that in the absence of any prayer in the plaint, it is open to the court to grant past mesne profit. So far the future mesne profit is concerned, the court has a discretionary power to pass a decree directing the enquiry into the future mesne profit and the court may grant such mesne profit, although it is not specifically asked for in the plaint. In the present case, the court has not exercised its discretion to grant future mesne profit. In the absence of such an order or direction, it was not open to the executing court to direct for enquiry into the future mesne profit. Further, the reliance of decision in the case of Meenakshi Ayal (supra) , has no application to the present case.
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