PURNA CHANDRA RAY CHOWDHURY Vs. JOGENDRA NATH CHOWDHURY

JUDGEMENT

(1.) The question arising on this second appeal, in which the plaintiff is the appellant, is whether the rejection of an application for the assessment of mesne profits debars a farther application for assessment being made. The District Judge of the 24-Pargannas, reversing the decision of the Munsif, had held that rejection of such an application debars any subsequent application as the rejection has the effect of dismissing the suit, and he relies for this upon the authority of Upendra Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 3.

(2.) The material facts are as follows: The suit was filed on the 1st February 1934 claiming possession of certain lands and Wasilat at the rate of Rs. 30 per annum or at such rate as the Court should direct. On the 23rd June 1904 the suit was decreed and it was directed that the amount of mesne profits should be ascertained in the execution department. The decree was affirmed on appeal on the 11th September 1905. On the 8th September 1908 the plaintiff applied for the assessment of the mesne profits awarded him by the decree, but the application was rejected on the 28th November 1908 as frivolous as the petition was not accompanied by a copy of the decree and the basis upon which mesne profits were to be assessed was not stated. On the 27th November 1911 the heirs of the original plaintiff made a second application for the assessment of mesne profits, which is the subject of this appeal. It follows that if the rejection of the application on the 28th November 1903 was only an application in execution, the application of the 27th November 1911 is not barred, if on the Other hand the rejection amounted to a dismissal of the suit, then there was no pending suit at the time of the application of the 29th November 1911.

(3.) The decisions of this Court upon the question appear to conflict. In Ram Kishore Ghose V. Gopi Kanta Shaha 28 C. 242 the respondents obtained a decree for possession of certain lands with mesne profits on the 31st December 1889, which was confirmed on appeal on the 23rd January 1894. On the 22nd April 1895 the respondents in execution of the decree obtained possession and the execution proceedings were dismissed. They next applied in execution for realization of costs and determination of mesne profits and on the 21st November 1896 the costs were realized and the execution proceedings struck off. On the 28th January 1898 the respondents applied for assessment of mesne profits by deputing an Amin, and it was held that the application was competent as applications to determine mesne profits are to he treated as applications for execution of the decree and that the striking off of such applications did not finally decide them or prevent a decree-holder from making a further application for the determination of mesne profits. Reliance was placed on a principle laid down in Raiah Muhesh Narain Singh v. Kishanund Misr 9 M.I.A. 324 : 2 Ind. Jur. (O.S.) 1 : 5 W.R.P.C. 7 : Marsh. 592 : 1 Suth. P.C.J. 488 : 1 Sar. P.C.J. 862 : 19 E.R. 764, namely, that when the execution of a final decree in a suit fails or is set aside and the proceedings with regard to execution are taken off the file, the whole suit is not thereby discontinued. In the coarse of the judgment reference was made to a Fall Bench case of Puran Chani v. Roy Radha Kissen 4 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534, which is considered later in this judgment. In Upendra, Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 3 another Bench of this Court held that the dismissal for default of an application to ascertain mesne profits was equivalent to a dismissal of the claim for mesne profits and that a fresh application in the same matter was not admissible. The Bench, however, revived an application for restoration of the suit which had been abandoned and restored the suit and directed the application for mesne profits to be considered on its merits. The decision was based upon Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534 and Ram Kishore Ghose v. Gopi Kanta Shaha 28 C. 242 was distinguished or if indistinguishable, was treated as not binding in view of the decision in Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534.