RAM KISHORE GHOSE Vs. GOPI KANT SHAHA

JUDGEMENT

(1.) This is an appeal against a judgment of the District Judge of Mymensingh, dated the 20th December 1899. The point raised in this appeal is of a novel nature, the question for determination being whether the dismissal of an application for the determination of mesne profits means the same thing as the dismissal of the suit. The facts of the case are these. The decree-holders obtained a decree against the judgment-debtor for possession of certain lands with mesne profits. The decree-holders first applied for possession of the land and obtained it. Execution proceedings were then dismissed. The decree-holders then applied for realization of costs and for determination of mesne profits. The costs were realized, and execution proceedings were dismissed on the 21 of November 1896.

(2.) On the 28 of January 1898 the decree-holders again applied for determination of mesne profits, upon which two of the judgment-debtors opposed the application on the ground that the dismissal of the application for the determination of mesne profits on the 21 of November 1896 operated as a dismissal of their claim to mesne profits; and, inasmuch as they had taken no steps to have their case revived by application or appeal, that order was final.

(3.) The District Judge has disallowed this contention and has allowed the application for determination of mesne profits to proceed.