SUNDAR MAHTON Vs. MTRAJHARI KUER

JUDGEMENT

(1.) The appellant appeals from a decision of the learned District Judge in which he decided that a certain application for ascertainment of mesne profits was not barred by limitation and it is against this appeal that a preliminary objection is taken. All that need be said at this stage of the proceedings is that the application for ascertainment of mesne profits resulted from the success of the defendant in an action for possession of property in the High Court, that is to say, that the decree for possession which was given by the trial Court to the plaintiff was set aside in the Court of appeal and ultimately that decision was affirmed by this Court. After that there was an application for restitution of the property and then an application for ascertainment of mesne profits.

(2.) I am anxious to make it clear that I am not deciding that the one application arose out of the other or that there was or was not as the case might be an order for ascertainment of mesne profits in the order which was made on the application for restitution. I am particular in this respect as the final determination of the question may depend upon certain facts with regard to this point which are not now before us and make it impossible for us to express any view. The learned Judge as I have stated came to the conclusion that the application in those circumstances was not barred by limitation.

(3.) The preliminary objection which is now taken is that no appeal lies to this Court in those circumstances. It is not seriously denied, nor could it be denied that had the decision been the other way, namely that the Judge had decided that the application was barred by limitation then his order would have finally decided all the rights of the parties and would have been a decree and would therefore have been appealable. But it is contended that different considerations apply when the decision on the question of limitation was in favour of the applicant for mesne profits; that it is merely an order on an interlocutory matter, or on a preliminary objection and therefore does not dispose of the rights of the parties; it is therefore not appealable.