Arijit Pasayat, J. - (1.) Leave granted.
(2.) Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High Court, Aurangabad Bench, dismissing the appeal filed by the appellant under Section 100 of the Code of Civil Procedure, 1908 (in short the CPC). The appellants, heirs of the original Defendant Nos. 1 to 3 questioned correctness of the decree and judgment passed by learned Additional District Judge, Osamabad in Regular Civil Appeal No. 89 of 1999 confirming the decree in Regular Civil Suit No. 62 of 1981 passed by the Civil Judge, Jr. Division, Kallam. The High Court dismissed the Second Appeal holding that there was no question of law involved and therefore, the Second appeal was without merit.
(3.) Learned counsel for the appellant submitted that while issuing notice in the Second appeal, the High Court categorically observed as follows: "The next ground argued by the learned counsel for the appellant is that the plaintiff did not pray for an inquiry with the mesne profit to be held under Order XX Rule 12 in the plaint and in the absence of specific prayer for an inquiry into the mesne profits the same should not have been granted by the courts below. The said directions is contained in clause IV in the operative part of the judgment and decree of the trial court. The learned counsel for the appellant has placed reliance on the judgment of the Apex Court reported in AIR 1952 Supreme Court 358, Mohammad Amin and Others vs. Vakil Ahmed and Others and to precise para 20 thereof. In this view of the matter issue notice before admission returnable in six weeks touching only clause IV of the operative part of the order passed by the trial court directing the inquiry in regard to mesne profits under Order XX, Rule 12. The respondents be intimated that the appeal will be finally heard and decided at admission stage." ;