CHITTURI SUBBANNA versus KUDAPA SUBBANNA & OTHERS

Citation: [1965] 2 S.C.R. 661 · Decided: 18-12-1964 · Supreme Court of India · Bench: RAGHUBAR DAYAL · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
CHITIURI SUBBANNA 
v. 
KUDAPA SUBBANNA & OTIIERS 
December 18, 1964 
B 
[RAGHUBAR DAYAL, J. R. MUDHOLKAR AND S. M. SIKRI, JJ.) 
c 
D 
Code of Civil Procedure (Act 5 of 1908), O. XX. r. 12-Prelimlnary 
decree not In accordance with ru/e--Not appealed against-Effect. 
Practice and Procedure--Point of law-Raised for the first time at 
hearing of appeal-If permissible. 
In a suit for possession and mesne profits the High Court gave a 
direction in the preliminary decree that the trial court should make an 
enquiry into the mesne profits payable by the appellant (judgment debtor), 
from the date of the institution of the suit, and p38$ a final decree for 
payment of the amount found due up to the date of delivery of possession 
of the properties to the respondent 
(decree bolder). The trial court 
appointed a Commissioner for making the enquiry, and after considering 
bis report, passed a final decree for a certain amount. No objection was 
taken by the appellant, either before the Commissioner or the trial court 
that accounts could be taken under 0. XX, r. 12 Civil Procedure Code, 
only for 3 year from the date of the preliminary decree and not till the 
later date when possession was delivered to the respondent. In his appeal 
to the High Court also, the appellant did not raioe the ground in the memo-
randum of i\ppeal, but when the appeal was argued he sought to raise the 
contention. The High Court did not allow him to do so and dismissed 
the appeal. Along with the appeal, the High Court dealt with the cross 
E 
objections preferred by the respondent in which be claimed enhane<lment 
of the amount of mesne profits and partially allowed the cross objections. 
In the appeal to the Supreme Court it was contended that (i) the High 
Court was in error in not allowing the appellant to raise the objection 
based on O.XX, r. 12 of the Code, (ii) the respondent was not entitled 
to be granted mesne profits for a period beyond three years from the 
date of the preliminary decree and (iii) the High Court was in error in 
F 
G 
H 
enhancing the amount of mesne profits. 
HELD (Per Raghubar Dayal and Sikri, JJ.) : (i) 111e High Court 
"'"' in error in not allowing the appellant to urge the additional ground 
before it. [669 B-C] 
It was a pure question of law not dependent on the determination of 
any question of the fact and such questions are allowed to be raised for the 
first time even at later stages. 
Even though the High Court has discre-
tion to allow or refuse an application for raising an additional ground, 
the order refusing permission could be interfered with by the Supreme 
Court, because, it was not in conformity with the principle that a ques-
tion of pure law can be urged at any stage of a litigation. [664 H; 666D-F, 
G] 
There was no question of the appellant conceding before the Commis-
lioner or electing before the trial court that mesne profits could be calcu-
lated till the date of delivery of possession when no dispute about the 
matter had arisen between the parties. (666 HJ 
Further, the respondent could not haYe been prejudiced by the appel-
lant raising the new ground at the bearing of the appeal and not earlier, 
662 
SUPREME 
COURT 
REPORTS 
(1965] 2 S.C.R. 
for, even if the appellant bad raised it before the Commissioner the res-
A 
pondent could not have sued for mesne profits beyond three years, as by 
that time, the period of limitation for such a suit had expired. [669 A-BJ 
(ii) A decree under O.X.X., r. 12 of the Code, directing enquiry 
into mesne profits, however expressed, must be construed to be a decree 
directing the enquiry in conformity with the requirements of r. 12(l)(c), 
and so the respondent would not be entitled to mesne profits beyond a 
period of three years from the date of the preliminary decree. [676 A-BJ 
B 
It is open to the court to construe the direction in accordance with 
the provisions of the rule when such direction is not fully expressed so 
as to cover all the alternatives mentioned therein. [673 FJ 
The direction in the preliminary decree could not have been appealed 
against because, the question about the proper period for which mesne 
profits was to be decreed really comes up for decision at the time of 
passing the final decree, by which time, the parties would be in a position 
to know the exact period for which future mesne profits could be decroed: 
and so, the appeal could be filed only after a final decree is passed and 
a. 97 of the Code would be inapp

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