SHANKER APPAJI PATIL Vs. GANGARAM BAPUJI NAGUDE

JUDGEMENT

(1.) This is a second appeal against the order passed by the First Class Subordinate Judge at Ahmednagar in proceedings arising out of Suit No. 67 of 1915. The suit was brought by the plaintiff for possession of the land with mesne profits. On July 10, 1917, he obtained a decree for possession, and a preliminary decree was passed under Order XX, Rule 12, of the Civil Procedure Code, directing an inquiry into the mesne profits. There were two appeals filed by defendants Nos. 1 and 2 which were dismissed. The plaintiff obtained possession of the land; and filed applications in 1919 and 1921 for ascertainment of mesne profits which were not prosecuted. The present application No. 7 of 1923 is made for ascertainment of mesne profits against the defendants and the surety who made himself liable for the decretal amount to the extent of Rs. 800. The Subordinate Judge held that the application for a final decree for mesne profits was barred by limitation. On appeal, the learned District Judge held that the application should be considered as one to enforce a judgment, decree or order of a Court and was beyond time under Art. 181 of the Indian Limitation Act.

(2.) Under the Civil Procedure Code of 1882 the amount of mesne profits was to be determined in execution proceedings (vide Section 244, Clauses (a) and (b) of Act XIV of 1882). Under the present Code the amount has to be determined by the decree in the suit, and not in execution, and an inquiry as to mesne profits under Order XX, Rule 12, is not a proceeding in execution but a proceeding in continuation of the original suit. See Rudra Pratap Singh V/s. Sarda Mahesh Prasad Singh (1925) I.L.R. 47 All. 543. There was a conflict of judicial opinion on the point under the old Code as to whether an application for ascertainment of mesne profits was an application in the suit or an application in execution of the decree. It was held by the Calcutta High Court in Puran Chand V/s. Roy Radha Kishen (1891) I.L.R. 19 Cal. 132, f.b that an application to ascertain the amount of mesne profits was an application in the suit and not an application iii execution and neither Art. 178 nor 179 of the Indian Limitation Act applied to such an application. This Court, however, differed from the Calcutta High Court and held that an application to have the future mesne profits ascertained was an application in execution. See Gangadhar V/s. Balkriahna Soiroba (1920) I.L.R. 45 Bom. 819, s.c. 23 Bom. L.R. 263 and Yusuf Ali V/s. Papa Miya (1923) I.L.R. 47 Bom. 778, s.c. 25 Bom. L.R. 810. The present Civil Procedure Code has set at rest the divergence of opinion between different High Courts by accepting the view that the ascertainment of mesne profits is a continuation of the suit and an application for ascertainment of mesne profits is not an application in execution. Under Order XX, Rule 12, Clause (1), where a suit is for the recovery of possession of immoveable property and for mesne profits, the Court may pass a decree (a) for possession of the property, (b) for past mesne profits or directing an inquiry as to such mesne protits, and (c) directing an inquiry as to future mesne profits from the institution of the suit. Clause (2) of the rule provides that where an inquiry is directed under Clause (b) or (c), a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry.

(3.) Under Order XXVI, Rule 9, in any suit in which the Court deems a local investigation to bo requisite for the purpose of ascertaining the amount of mesne profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. The words "or proceeding" in Section 392 of the old Civil Procedure Code have been omitted in Rule 9 of Order XXVI. On the result of such inquiry as is directed by the Court a final decree is to be passed for means profits under Clause (2) of Rule 12 of Order XX. Order XX, Rule 12, does not provide for any application to be made for the ascertainment of mesne profits. It provides that the Court after directing an inquiry shall pass a final decree in accordance with the result of such inquiry. No application is provided under this rule as is provided under Order XXXIV, Rule 5, s. Sub-clause (2), under which a final decree for sale of the mortgaged property cannot be made except on application made in that behalf by the plaintiff. In Bhatu Ram Modi V/s. Fogal Ram (1925) I.L.R. 5 Pat. 223 it is held that where a decree for mesne profits has been passed and an application has been made for ascertainment of the mesne profits it is not competent to a Court at any stage to dismiss the application, it being beyond its power to dismiss a claim which has already been decreed, and that it is always open to the decree-holder to ask the Court to ascertain the mesne profits inasmuch as an application for mesne profits is an application in the wait itself, and the law of limitation has no application to it so long as the suit is a pending suit. The observations in Lachmi Narain Marwari V/s. Balmakund Marwari (1924) L.R. 51 I.A. 321, s.c. 26 Bom. L.R. 1129 would apply. In that case a preliminary decree for partition was made and the Subordinate Judge dismissed the suit on the ground that the plaintiff did not appear on the date fixed for consideration of the question how the partition was to be effected. Their Lordships of the Privy Council observed that after a decree had once been made in a suit, the suit could not be dismissed unless and until the decree was reversed or varied or set aside, and that after a decree any party could apply to have it enforced.