NITYANANDA GANTAYET Vs. GAJAPATI VASUDEVA DEVU

JUDGEMENT

(1.) The order of the District Munsif of the 31 March 1896 neither granted nor refused the application for mesne profits which had been adjudged the plaintiff in the decree. The order is silent on the paint. If. is urged that, as the prayer for mesne profits was not granted, while the other prayer regarding the. delivery of the land was dealt with and granted, it must be taken that the application for mesne profits was refused and so the matter is res judicata. We cannot accept this contention as the decree granting the mesne profits is still in full force and effect, and the plaintiff is entitled to execute that decree so long as it is kept alive, and the decree cannot be superseded by the mere omission of the Court executing the decree to pass orders on a claim made under it. If such orders are not passed there is nothing to prevent the petitioner applying for them again in due course. The law of res judicata as laid down in explanation III of Section 13 of the Civil P. C. can have no application to a case like this.

(2.) The point that mesne profits have been allowed for time in excess of that permitted by Section 211 of the Civil P. C. was not raised in either of the lower Courts nor in this Court until to-day. We refuse to hear the objection now.

(3.) The appeal is dismissed with costs.