DORAISWAMI AYYAR AND FIVE ORS Vs. TSUBRAMANIA AYYAR

JUDGEMENT

(1.) I agree with the referring Judges. Explanation V to Section 11 of the present Code of Civil Procedure is in exactly the same terms as the corresponding explanation III to Section 13 in the Code of 1882. Under the Code of 1882 it was held by a Full Bench of this Court in Kuppusamy Ayyar v. Venkataramier , in conformity with the decisions of other High Courts, that the word relief in the explanation means relief arising out of a cause of action which had accrued at the date of suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to rebut this presumption in the fact that Sections 211 and 212 of the old Code were amalgamated to form Order XX, Rule 12. The change introduced by the new rule is that the award of mesne profits in all cases is to be by preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution. This change does not appear to me to affect the construction of explanation V to Section 11, nor do I think is effected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code. I answer the question in the affirmative. Ayling, J.

(2.) I regret that I am unable to concur. The point referred is identical with that considered by Hannay, J., and myself in Ramaswami Iyer v. Sri Rangaraja Iyangar (1915) 2 L.W., 8, and with all respects after hearing it reargued. I remain of the same opinion.

(3.) I would answer the question in the negative. Kumaraswami Sastriyar, J.