KUPPUSWAMI, J.

(1) THE petitioner is the plaintiff in O. S No. 804 of 1954 on the file of the District Munsifs Court, Vijayawada. which was suit filed by him and another for a declaration that certain property was Wakf property granted for the upkeep, worship lighting etc. , in the Thotavallur Masjeed and that the alienation of the said property by the second defendant was invalid and for possession of the same together with damages of Rs. 400 for use and occupation for the years 1952 and 1953. During the pendency of the suit the plaintiffs filed an application I. A. No. 360 of 1954 requesting permission to amend the plaint by adding a prayer for a direction for inquiry into future mesne profits. This application was ordered. The learned District Munsif, vijayawada dismissed the suit holding that it was not proved that the properties were Wakf properties. On issue 9 which was to the effect "what mesne profits, if any, are the plaintiffs entitled to ", he held that the plaintiff would be entitled, to rs. 400 as damages. But in view of his finding on the main issue he dismissed the suit. The plaintiffs preferred A. S. No. 121 of 1957 to the Sub-Court, Vijayawada.

(2) THE learned Subordinate Judge, held that the properties were wakf properties allowed the appeal and declared that the alienation by the 1st defendant in favour of the second defendant is void and. not binding on the plaintiff. A petition for review, i. A. No. 2825 of 1957 was filed stating that there should, also be a decree for possession that petition was allowed and a decree directing that defendants to be ejected from the suit property and possession be delive. ed to the first plaintiff was also passed.

(3) THOUGH the trial Court had held that the plaintiff would be entitled to damages of rs. 400 if the suit were maintainable and though the plaint as amended had asked for past and future mesne profits the appellate decree was silent about the profits past or future. The defendants preferred S A. No. 136 of 1960 to this Court. By its judgment dated 17th July, 1963, this Court confirmed the findings of the Courts below but held that the first defendant would be entitled to the surplus of the income which remained after spending for the upkeep of the Masjeed etc. The appeal was, therefore, allowed to the extent that the first defendant was declared to be entitled to the surplus income In other respects it was dismissed, The plaintiff, thereafter filed an application C. M. P. No. 9528 of 1964 contending that this Court erred in granting a decree in favour of the defendant declaring that he was entitled to surplus income. This petition was allowed, The Second Appeal was reached and by judgment dated 13th September, 1965 the Second Appeal was dismissed in toto.

(4) DURING the pendency of the Second Appeal before this Court, the first plaintiff filed i. A. No. 301 of 960 under Order 20, rule 12 and section 151, Civil Procedure Code praying that the Court may hold an enquiry to determine the mesne profits in each year and to grant a decree for the same from the late of the plaint till possession given. Orders were passed by the leaned District Munsiff on this petition on 8th February, 1964. By that time this Court and held by its judgment dated 17th July, 1963 that the first defendant would be entitled to surplus income. The first defendant had also admitted in a memo, dated 13th November, 1963 that he utilized the surplus income. In view of the judgment of the High Court, the learned District munsiff held that the plaintiff was not entitled to any mesne profit and dismissed the petition. The plaintiff preferred A. S. No. 115 of 1964 to the sub-Court, Vijavawada.

(5) BY the time this appeal was heard, the High Court had reviewed the judgment in S. A. No. 136 of 1960 and had deleted the portion of the decree passed earlier stating that the defendant was entitled to the surplus income. The learned subordinate Judge, therefore, held that the ground on which the learned District Munsif had dismissed the application was no longer tenable. He, however, held that the plaintiff was not entitled to claim mesne profits as no relief was claimed for future mesne profits in the suit and there was no decree for future mesne profits. He also held that the remedy of the plaintiff if any, was to move the High Court where the Second Appeal is pending and seek directions regarding future mesne profits and as no such attempt was made a final decree for future mesne profits could not be passed. In the result he dismissed the appeal with costs. This Second Appeal has been preferred against the said judgment. It was heard in the first instance by Parthasarathi J. , who felt that the questions which have been debated in the Second Appeal by the counsel on both sides appear to call for an adjudication by a Division Bench, so that the precise scope of the decision referred to by them, namely, Atchamma v. Ramireddi, (1957)2 An. W. R. 474, may be determined in an authoritative manner. It is in those circumstances that the Second Appeal has been posted before us. It is contended by Sri Venkatarama Sastry, the learned Advocate for the appellant that the decision of the Court below that application for determination of future profits is not maintainable as no relief was claimed for future mesne profits in the suit and there was no order to that effect, is erroneous in law. This question has been considered in a number of decisions, but the matter has been set at rest by a recent decision of the Supreme Court in Gopalakrishna Pillai v. Meenakshi Ayal, (1967)1 An. W. R. (S. C.) 89 : (1967) 1 M. L. J. (S. C.)89 : (1967)1 S. C. J. 450 : A. I. R. 1967 S. C. 155. It was held in that case that where a suit is for recovery of possession of immovable property and for past mesne profits the Court has ample power to pass a decree directing an enquiry into the future mesne profits though there is no specific prayer for the same in the plaint. In the present case also that suit is for possession and for past mesne profits, though there was no prayer for future mesne profits. In view of this, authoritative decision of the Supreme Court. , it cannot now be contended that as there was no prayer for future mesne profits the Court is not empowered to grant a decree for the same. Further, in this ease the plaint as amended contained a prayer for future profits also.

(6) IT was however argued by Mr, Manawala Choudary the learned Counsel for the respondent that as the decree in the first instance was passed on 29th September, 1958 and even the amended decree was passed on 3rd November, 1959 and there was no direction regarding either past or future mesne profits, in the said decree, an application for enquiry into the future mesne profits is not maintainable and cannot be entertained subsequent to the date of the decree and as the present application I. A. No. 301 of 1960 was filed on 9th January, 1960, the application was not maintainable.

(7) THIS argument ignores the circumstances that on the date when the application was filed the proceedings were still pending by way of Second Appeal in this Court. In Basavayya v. Guravayya, I. . L. R. (1952)Mad. 173 : (1951)2 M. L. J. 176 : A. I. R. 1951 Mad. 938 [LQ/MadHC/1951/52] (F. B.), which is recognised as the leading authority on this subject the Full Bench of the Madras High Court observed that"where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit which, for one reason or another continues to be pending, there is nothing in the Civil Procedure Code, prohibiting the decree-holder from applying to the court during the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the decree-holder to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree". It was held that an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit cannot be said to be without jurisdiction. In this case as the decree which the plaintiff had obtained in a. S. No. 121 of 1957 sub Court, Vijayawada, was the subject-matter of Second Appeal which was pending at the time when the application was filed, the Suit O. S. No. 804 of 1954 District Munsiffs Court, Vijayawada, must be held to have been pending on the date of the application. Therefore, on the authority of the above judgment such a petition was maintainable. Mr. Chowdary could not seriously dispute that the suit was pending as long as the Second Appeal was pending in this Court.

(8) BUT he contended that as the suit was pen ding in this Court, it is only to the appellate court that the application should have been made. We do not think there is any substance in this contention. The application under Order 20, rule 12 Civil Procedure Code, has to be made to the Court of first instance. Even where an appellate court directs such an enquiry, it has been provided under Order 20, rule 12, clause 3, that it may direct the Court of first instance to make the enquiry and in every case the Court of the first instance may of its own accord, and shall whenever moved to do so by the decree holder, inquire, and pass the final decree. In support of his contention that the application should be made to the appellate Court, Mr. Chowdary relied on a decision in Atchamma v. Ramireddi, (1957)2 An. W. R. 474 : A. I. R. 1958 A. P. 517. In that case there was no prayer for future profits in the plaint. The trial Court decreed the suit for possession. There was an appeal and a Second Appeal and even in the decree of the High Court there was no direction regarding the future mesne profits. Then there was an appeal to the Supreme Court. Pending the appeal, the plaintiff filed an application for recovery of future mesne profits. This was opposed on the ground that the petitioner did not ask for that relief. The High Court after referring to various decisions in this matter held that the Court was entitled to award future mesne profits even though there was no prayer for the same. The decree holder could apply to the Court during the pendency of a suit for an enquiry into future mesne profits even though the decree was silent with regard to the enquiry into future mesne profits. But it was pointed out that the plaintiff could not claim future mesne profits as a matter of right as was held by the Full Bench in Basauayya v. Guravayya. When it was argued that the application in that case was made during the pendency of the appeal before the Supreme Court, they observed that :"the fact that the Supreme Court appeal was pending would not help the petitioner as she did not bring the fact of the existence of this application to the notice of the Supreme Court and did not seek to get incorporated in the decree any directions in regard to the said relief to the Supreme Court ; the Judgment of the Supreme Court had become final and the petitioner cannot now seek to reopen it. In the result, we hold that the present application Is not maintainable and in any view, as the decree had become final, in the exercise of our discretion, we refuse to allow this application. "

(9) THESE observations were relied on by Mr. Chowdary who contended that it was the duty of the petitioner to have similarly brought to the notice of the High Court in s. A. No. 136 of 196o the pendency of the application and should have got incorporated in the decree any direction in regard to the future mesne profits. He, therefore, contended that the application was not maintainable and the decision of the High court had become final. We fully agree with the decision in so far as it held that the plaintiff was not entitled as of right to a direction for future mesne profits when he had not asked for the same and it was in the discretion of the Court to grant it or not and that in view of the fact the plaintiff did not bring the application to the notice of the Supreme Court and take steps to have a direction regarding future mesne profits incorporated in the decree the Court was right in refusing to exercise its discretion Their Lordships also held that they were not willing to allow the application in the exercise of their discretion. But we respectfully dissent with the observations, which were not really necessary for the purpose of the case, to the effect that decision of the Supreme Court had become final, and the petitioner could not seek to reopen it and the petition was not maintainable. These observations are in our humble opinion contrary to the observations of the full Bench in Basavayya v. Guravayya, (1951)2 M. L. J. 176 : I. L. R. (1952) Mad. 173 [LQ/MadHC/1951/72] : A. I. R. 1951 Mad. 938, [LQ/MadHC/1951/52] where it was held that such an application is maintainable so long as the suit is not completely disposed of and is still pending. The proceeding in regard to future mesne profits is a separate proceeding and we are unable to see how the finality of the judgment of the High Court or the Supreme Court can in any way affect the maintainability of the petition for enquiry into future mesne profits which according to the Full Bench can be filed at any time as long as the suit is pending. Once it is recognised that such an application is maintainable so long as the suit is pending, and once it is admitted that the suit is not disposed of as long as an appeal is pending, we fail to see how the application which was maintainable in the first instance when it was filed, will cease to be maintainable merely because at the time of the subsequent decision of the appellate Court the fact is not brought to its notice and it is not asked to incorporate a decision of mesne profits in its decree.

(10) WE have therefore to see whether the plaintiff has made out a case for the exercise of discretion in his favour. It has already been noted that the plaintiff filed the application for amendment of the decree. Even there he prayed only that a decree for possession may be passed and did not ask for future or past mesne profits even at the time the Second Appeal was dismissed with an observation that the ist defendant was entitled to surplus income, he did not ask that the decree should also contain a direction for an enquiry into mesne profits. He then applied for a review.

(11) AFTER the review petition was ordered and the second appeal was restored and again heard, he was again content with a mere dismissal of the Second Appeal. Having regard to all these circumstances, it cannot be said that the lower Court did not exercise its discretion properly in dismissing the application for enquiry into future mesne profits which according to the decisions cited above is entirely a matter of discretion of the Court below. We therefore, see no reason to interfere with, the order of the learned Subordinate Judge.

(12) IT was also argued by Mr. Chowdary that the relief for future mesne profits must be deemed to have been refused during the earlier proceedings as the decree was silent. He referred to a decision in Tausif Ahmed v. Baharuddin, A. I. R. 1965 Pat. 436 at 440, in which it was held that where a relief for mesne profits was asked for and the decree keeps silent about the future mesne profits it must be deemed to have been refused. In this case also the plaintiff has asked for the relief of future mesne profits under the amended plaint. The trial Court dismissed the suit on its finding that property was not wakf property. When the appeal was allowed, the lower appellate Court granted only a declaration and did not give a decree for past or future mesne profits. In the circumstances the necessary inference is that the said relief was refused. Even when the appellant applied for review he asked only for the relief of possession which was granted. He did not choose to ask for either past or future mesne profits. The result of all these proceedings is that the prayer for past and future mesne profits must be deemed to have been refused. On the other hand, Mr. Venkatarama Sastry relied on the following observation in Basayyaa v. Guravayya, I. L. R. (1952)Mad. 173 (1951)2 M. L. J. 176 : A. I. R. 1951 Mad. 938 [LQ/MadHC/1951/52] : "a mere omissiem as distinguished from a refusal to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. " again in another portion it was suited :"if to use the language of Ghulsum Bivi v. Ahmedsa Raothar, (1919)I. L. R. 42 Mad. 296, the preliminary decree intentionally omits that is to say, refuses to direct an enquiry into future mesne profits, that decision will, subject to the result of any appeal, be binding on the parties in all the subsequent stages of the suit and no application can thereafter be made in the course of the suit for an enquiry into such profits. "

(13) HE argued that this was not a case of international omission to direct an enquiry into future mesne profits. Having regard to all the facts and circumstances mentioned about , we are unable to agree. For this reason also we arc of the opinion that the lower appellate Court was right in rejecting the application. The Second Appeal is dismissed, but in the circumstances without costs. Appeal dismissed.