Narayanarao (Dead) through Lrs. and Others vs Sudarshan

The respondent-plaintiff instituted a suit for partition and possession of the suit property. The trial court decreed the suit. Before the trial court there was no issue regarding the mesne profits nor there was any prayer for the grant of mesne profits. The trial court, therefore, did not make any order so far as the entitlement of the respondent-plaintiff for mesne profits was concerned. The appellant-defendant went in appeal before the High court. The High court while dismissing the appeal granted mesne profits to the respondent-plaintiff. The High court purported to act under order XLI, Rule 33 Civil Procedure Code in granting further decree for mesne profits.

WE have heard learned counsel for the appellant. It is not necessary for us to go into the scope and interpretation of Order XLI, Rule 33 Civil Procedure Code in the facts and circumstances of this case. The High court invoked order XLI, Rule 33 Civil Procedure Code for doing complete justice between the parties. The High court was of the view that it was not a case where the trial court had denied decree for mesne profits but it was a case where it omitted to raise an issue in that respect. We see no infirmity in the judgment of the High Court in granting mesne profits in the facts and circumstances of this case. The appeal is dismissed with no order as to costs throughout.