ORDER
L. Narasimha Reddy, J.
1. The petitioner herein filed O.S. No. 41 of 1981 in the Court of Senior Civil Judge, Atmakur, against her step-mother, the respondent herein, and five others, for partition. The trial Court dismissed the suit, on 05-03-1984. Thereupon, the petitioner filed A.S. No. 2072 of 1986 before this Court. The appeal was allowed and a preliminary decree was passed on 12-11-2001, directing, inter alia, that the petitioner on the one hand and the respondent on the other, shall be entitled to half share, each, in the suit schedule properties.
2. The petitioner filed four applications, namely, I.A. No. 27 of 2002 for passing final decree; I.A. No. 28 of 2002 for appointment of a Commissioner to divide the plaint schedule properties; I.A. No. 141 of 2004, under Order XX Rule 12 C.P.C., for appointment of a Commissioner, to determine the mesne profits, with reference to items 1 to 4 and 8 to 11 of the suit schedule properties for various periods, and I.A. No. 138 of 2005, under Order XXI Rule 42 C.P.C., for attachment of the share of the compensation payable to the respondents in O.P.Nos. 5045 and 5046 of 1987. The trial Court dismissed I.A. No. 138 of 2005, through its order, dated 27-09-2006. The other three applications are said to be pending. This revision is directed against the order in I.A. No. 138 of 2005.
3. Sri O. Manohar Reddy, learned Counsel for the petitioner, submits that though the preliminary decree is silent as to mesne profits, it is always open to the plaintiff or defendant, in a partition suit, to pray for a decree of mesne profits, as long as no final decree was passed, and that the interests of the petitioner must be protected till the trial Court disposes of I.A. No. 141 of 2004. He contends that in O.P. Nos. 5045 and 5046 of 1987, the compensation payable for the lands, which were acquired by the Government, was apportioned between the petitioner and the respondent, and if the latter is permitted to withdraw the same, the order that may be passed by the trial Court for mesne profits, may become otiose.
4. Sri C. Prakash Reddy, learned Counsel for the respondent, on the other hand, submits that, as of now, there does not exist any decree for ascertainment, or payment of mesne profits and the question of the application being filed under Rule 42 of Order XXI, does not arise.
5. In the ordinary course, wherever the relief of a decree for mesne profits is claimed in a suit for partition, it is dealt with at the stage of preliminary decree. Even where the plaint is silent as to such a relief, or where the preliminary decree does not contain any direction as to ascertainment, or payment of mesne profits, the concerned party can approach the Court with an application, for grant of decree of mesne profits. Such a step can, however, be taken, only before a final decree is passed, for, the suit can be said to be pending till that stage.
6. In the matter of attachment of properties, to satisfy the claims in a suit, two stages are contemplated. The first stage is the one before judgment, dealt with by Order 38 Rule 5 and the second stage is subsequent to the decree, provided for under Rule 42 of order XXI.
7. In the instant case, the application was filed under Order XXI Rule 42 C.P.C., which reads as under:
42. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined:- Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.
8. From a cursory reading of the provision, it is evident that the obligation to order attachment of any item of property under this, would arise only if there exists a decree, which directs the ascertainment of mesne profits. In the absence of a decree, directing payment of mesne profits, attachment under Rule 42 of Order XXI, cannot at all be prayed for.
9. The question as to whether I.A. No. 141 of 2004 filed by the petitioner would result in a decree for mesne profits, becomes insignificant, in the present context. Mere pendency of an application for a decree for mesne profits, cannot constitute the basis for filing an application under Rule 42 of Order XXI. It is mandatory that a decree must exist directing payment of mesne profits, before the said provision is pressed into service.
10. The trial Court appreciated the matter from the proper perspective and this Court does not find any basis to interfere with the same. It is, however, made clear that, in case, a decree for mesne profits is passed in the suit, before the final decree is passed, it shall be open to the petitioner to renew her request for attachment, under Rule 42 of Order XXI C.P.C.
11. The C.R.P. is accordingly dismissed. There shall be no order as to costs.