Judgment:
ORDER
P.D. Dinakaran, J.
1. The petitioners have filled the revision petition against the order dated 20.8.1991 made I.A.No. 74 of 1990 in O.S.No. 20 of 1978 on the file of the Sub-Court Chingleput.
2. According to the petitioners, they are the petitioners in the said suit. They have filed the said suit for a decree to set aside the lease deed dated 17.12.1975 and for past and future mesne profits.
3. On 4.1.1979, the trial Court decreed the suit with costs and also awarded a sum of Rs. 3100 as mesne profits. Aggrieved by the said judgment and decree dated 4.1.1979, the respondents/defendants preferred an appeal in A.S.No. 66 of 1979 before the District Judge, Chingleput, who by a judgment and decree dated 5.11.1981 confirmed the order of the judgment and decree of the trial Court dated 4.1.1979 and the same was subsequently confirmed by this Court in S.A.352 of 1982 by a judgment and decree dated 4.2.1986.
4. Thereafter, the petitioners/plaintiffs herein filed an interlocutory Application No. 74 of 1990 on the file of Subordinate Judge, Chingleput to amend the decree in terms of findings with respect to issues three and four of the said judgment dated 4.1.1979, which are framed as follows:
'3. Whether the plaintiffs are entitled to past profits and if so to what amount?
4. Whether plaintiffs are entitled to future profits?'
5. The respondents herein filed a counter-affidavit contending that there is no decree for the future mesne profits and hence the petitioners/plaintiffs are not entitled for such an amendment.
6. After hearing both sides, the Trial Court by an order dated 20.8.1991 dismissed the above said interlocutory application holding that appointment of commissioner under Order 20, Rule 12 Civil Procedure Code is necessary for assessing mesne profits and since no steps were taken by the petitioners to appoint a commissioner under Order 20, Rule 12 Civil Procedure Code, the relief sought for the future mesne profits could not be given and consequently the interlocutory Application No. 74 of 1990 for amendment of the decree dated 4.1.1979 was rejected.
7. Against the said order dated 20.8.1991, the petitioner have filed the above revision petition.
8. When the matter was taken for hearing, there is no representation on behalf of the respondents. Therefore, I heard the learned counsel for the petitioners.
9. The learned counsel for the petitioners submit that the reasons mentioned by the learned Subordinate Judge, Chingleput in the order dated 20.8.1991 in I.A. No. 74 of 1990 in O.S. No. 20 of 1978 are not tenable in law inasmuchas the trial Court itself, while deciding on the issues three and four mentioned above, had rendered a finding as to the past and future mesne profits.
10. After a careful consideration of the submissions of the learned counsel for the petitioner, I am obliged to allow this revision petition for the following reasons:
i) While dealing with the Issues No. three and four, the trial Court in the operative portion of the judgment dated 4.1,1979 has found as follows:
'Issue No. 3: As there are 6 acres 87 cents of double crop nanja land, we can easily allow 10 bags per acre as gross income. If l/4th deduction is made towards the cultivation expenses, there can be a net income of not less than 7 bags per acre. It has been admitted by the second defendant in his evidence that paddy was sold at the rate of Rs. 70 or Rs. 80 per bag at the time. Therefore, there should have been a net income of not less than Rs. 500 per acre per crop. As the total extent is 6 acres 87 cents the net income exceeds more than the amount claimed by the plaintiffs. Therefore, the plaintiffs are entitled to the amount claimed for the past profits.
Issue No. 4: As the defendants are in possession of the suit properties, they are bound to pay future profits till the date of delivery of possession.'
(ii) The said findings are admittedly confirmed by the first appellate Court as per judgment and decree dated 5.9.1981 in A.S. No. 66 of 1979 and thereafter by this Court in judgment and decree dated 4.2,1986 in S.A. No. 392 of 1982; and
(iii) Therefore, the reason of the learned trial Judge that past and future mesne profits could be ascertained only after appointing a Commissioner under Order 20, Rule 12 Civil Procedure Code is not tenable in law.
11. In view of the above mentioned finding, on the issues No. three and four, I do not think it is necessary to appoint commissioner under order 20 Rule 12 Civil Procedure Code for assessing the past and future mesne profits. The trial Court ought to have amended the decree on the basis of the above finding in judgment dated 4.1.1979 in O.S.No. 20 of 1978. Failure to exercise his jurisdiction vested on the Sub-Judge vitiates the order dated 20.8.1991 made in I.A.No. 74 of 1990.
12. Hence I allow this revision petition and remit the matter to the trial Court with direction to amend the decree with regard to the past and future mesne profits in the light of the finding given in para 20 and 21 of the trial Court judgment dated 4.1.1979 in O.S.No. 20 of 1978 and pass an order within eight weeks from the date of receipt of this order.
13. The above civil Revision Petition is order accordingly. No costs.