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Raghu Mahton v. Bulak Mahton & Others

Patna High Court

Mar 17, 1953

Judgment

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Analytical Summary of the Opinion — Second Appeal (Mesne Profits)

Factual and Procedural Background

The plaintiff (appellant before the High Court) brought Title Suit No. 217 of 1940 for recovery of possession of 6.27 acres in village Kathauli. The plaintiff alleged a settlement in his favour by a registered document dated 1-5-1940 and that certain defendants (defendants first party) had dispossessed him. The plaintiff sought (a) declaration of title and recovery of possession; and alternatively (b) a money decree of Rs. 1,800 with interest against the defendants second party if possession could not be obtained.

The learned Munsif dismissed the suit as against the defendants first party but decreed the monetary claim against the defendants second party. Two appeals followed to the Subordinate Judge: one by the defendants second party and one by the plaintiff. The Subordinate Judge allowed both appeals on 20-11-1944, setting aside the Munsif’s judgment and decreeing the suit in favour of the plaintiff. Two second appeals by the defendants first party to the High Court were dismissed on 23-12-1947 on the ground of findings of fact.

The plaintiff obtained delivery of possession on 19-3-1948 and then applied for ascertainment of mesne profits for the period from 16-8-1940 (alleged date of dispossession) to 19-3-1948. The defendants first party contested that application on two main grounds: that the plaintiff had not claimed mesne profits in the plaint; and that the Subordinate Judge had not passed any preliminary decree directing an inquiry for mesne profits, thus the plaintiff could not seek final ascertainment. The learned Munsif allowed mesne profits subject to a set-off; on appeal the Additional Subordinate Judge held that the plaintiff was not entitled to mesne profits and dismissed the cross-objection. The present second appeal by the plaintiff challenges that dismissal.

Legal Issues Presented

Whether the plaintiff had specifically claimed past and/or future mesne profits in the plaint and whether the appellate decree in favour of the plaintiff effectively allowed such a claim.
Whether, in the absence of an express claim or a preliminary decree directing inquiry into mesne profits, the plaintiff could maintain an application for ascertainment and a final decree for mesne profits after the appellate decree in his favour.
Whether the respondents (defendants) became liable for mesne profits by reason of interim and conditional stay orders made by the Registrar of the High Court (including deposits ordered), either under Section 145 CPC or on some independent basis analogous to hypothecation/security bonds considered in prior decisions.

Arguments of the Parties

Appellant's Arguments

The plaint, when read as a whole (including para 13 and relief No. 5), did claim antecedent and future mesne profits; the appellate decree that "the suit be decreed" should be interpreted as allowing that claim and therefore the appellant was entitled to a final decree for mesne profits.
By reason of certain orders passed on a stay application (including directions for deposits), the respondents made themselves liable for mesne profits either under Section 145 of the Code of Civil Procedure or independently — appellant relied on Privy Council decisions to show such liability can arise from security/hypothecation instruments or undertakings.

Respondents' Arguments

The appellant did not claim mesne profits in the plaint as required (no approximate statement of past mesne profits under Order 7 Rule 2 CPC and only Re. 1 court-fee shown for "future mesne profits").
The Subordinate Judge who allowed the appeal did not make any preliminary decree directing inquiry into mesne profits; therefore the appellant could not maintain a subsequent application for ascertainment of mesne profits or obtain a final decree for them.
Any statements in their stay application suggesting compensation by mesne profits did not amount to an undertaking or security making them liable to pay mesne profits; the Registrar's orders only required deposits and did not impose liability for mesne profits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohd. Amin v. Vakil Ahmad, AIR 1952 SC 358	Mesne profits cannot be awarded when there is no demand in the plaint; a general expression of relief (e.g., awarding possession with rights appertaining thereto) does not include a claim for mesne profits if not specifically pleaded.	The court relied on the Supreme Court observations to support the conclusion that the appellant had not specifically claimed mesne profits and the appellate decree did not award them; therefore mesne profits could not be granted.
Lalji Singh v. Dwarika Singh, S.A. No. 166 of 1945 (Pat) (16-12-1948)	Where the decree for possession contains no direction that the plaintiff is entitled to mesne profits or to have them ascertained subsequently, an application for appointment of a commissioner for ascertainment of mesne profits cannot be entertained; the Court has no jurisdiction to institute such proceeding.	The court treated this authority as supportive of the position that absence of any direction in the decree precludes a later application for ascertainment; applied the same reasoning to dismiss the appellant's application.
Gulusam Bivi v. Ahamadsa Rowther, AIR 1919 Mad 998	In a simple suit for possession, final decree can provide for mesne profits past or future only where an inquiry into the same had been directed by the preliminary decree; omission (intentional or inadvertent) to direct such an inquiry must be remedied by amendment of the preliminary decree.	The court cited this decision to support the proposition that absence of a preliminary decree directing inquiry prevents later allowance of mesne profits in the final decree; it reinforced the view that one must look to what the preliminary decree directed.
Basavayya v. Guravyya, AIR 1951 Mad 938 (Full Bench)	Distinguished three classes of suits involving mesne profits; held that where the preliminary decree intentionally omits to direct inquiry into future mesne profits that omission (subject to appeal) is binding and no subsequent application for inquiry is ordinarily permitted, but if the suit is still pending and the decree is silent, an order for enquiry during pendency may be permissible.	The court considered the Full Bench's nuanced distinction but held its principles inapplicable here because in the present case no claim for mesne profits was really made and the appellate decree intentionally omitted reference to mesne profits, so the situation did not fall within the pendency exception.
Manmatha Nath v. Matilal Mitra, AIR 1929 Cal 719	Where judgment allows mesne profits but the decree omits specific direction, the decree may be construed as allowing mesne profits in accordance with the judgment.	The court noted this authority but considered it unnecessary to apply it because, unlike that case, the present appellate judgment and decree intentionally omitted any reference to mesne profits.
Kalidas Rakshit v. Saraswati Dasi, AIR 1943 Cal 1	An accidental slip or omission in a decree as to mesne profits may be an irregularity that the Court can correct and thus supply the missing direction.	The court observed this principle but held it inapplicable because the omission in the present case was intentional rather than an accidental slip.
Atcheyya v. Appalaraju, AIR 1947 Mad 109	For a final decree awarding mesne profits there must be a preliminary decree indicating something which the final decree is to carry into effect; if the preliminary decree awards no future mesne profits, there can be no final decree awarding them.	The court cited this passage approvingly and applied the clear principle to conclude that without any preliminary decree awarding future mesne profits no final decree could be granted.
Muthayya Kone v. Rakappan Ambalam, AIR 1936 Mad 137	Observations bearing on when courts may or may not declare liability for future mesne profits where no claim was made.	The court cited the decision to show that earlier observations do not support the proposition that a court may create a mesne-profits liability where none was claimed—used to reject the appellant's contention.
Sadasiva Pillai v. Ramalinga Pillai, 24 W.R. 193 (Privy Council)	Liability for mesne profits can arise from hypothecation bonds or express undertakings in which a judgment debtor undertakes to account for mesne profits in consideration of remaining in possession pending appeal.	The court distinguished this authority because in the present case no such hypothecation bond or express undertaking to pay mesne profits was executed by the respondents; therefore the case did not apply.
Raj Raghubar Singh v. Jai Indra Bahadur Singh, AIR 1919 PC 55	A hypothecation bond construed as an instrument of charge may make appellants sureties for restitution of mesne profits; the Court has jurisdiction over such sureties.	The court distinguished this decision as inapplicable because there was no hypothecation bond or similar undertaking in the present case and no condition imposed by the Registrar that made respondents personally liable for mesne profits.

Court's Reasoning and Analysis

The court conducted a document-focused analysis, examining the plaint (especially para 13 and the enumerated reliefs), the judgment and decree of the learned Munsif, and the judgment and decree of the Subordinate Judge who allowed the appeal. Key steps in the court's reasoning were:

Pleading analysis: The court scrutinised the plaint and observed that the suit proceeded primarily on two claims—possession or alternatively Rs. 1,800 with interest. The plaint did not set out a specific claim for past mesne profits as required by Order 7 Rule 2 CPC (which requires approximate statement and ad valorem court-fee), and the only indication of a mesne-profits-related court-fee was Re. 1 said to be on "future mesne profits."
Distinction between past and future mesne profits: The court noted statutory rules — past mesne profits require approximate quantification and ad valorem court-fee; future mesne profits are treated differently (no court-fee under Section 11 of the Court-fees Act). The single rupee court-fee entry did not constitute a specific pleaded claim for future mesne profits.
Appellate decree construction: The appellate decree was valued at Rs. 1,800 only and the operative part merely set aside the Munsif’s judgment and decreed the suit. The court held that if mesne profits were intended to be awarded, the appellate Court would have referred to them explicitly; relief No. 5 (a general residual clause) could not be read to include mesne profits absent a clear indication.
Reliance on authority: The court applied authorities (including Mohd. Amin and the Madras decisions) to establish that courts should not award mesne profits that were not specifically claimed, and that where a preliminary decree either intentionally omits direction for enquiry or the decree contains no direction, a later application for ascertainment cannot be entertained except in special circumstances (e.g., where the suit remains pending and the decree was silent through inadvertence).
Application of distinctions: The court accepted that some authorities permit enquiry during the pendency of a suit where the decree is silent through inadvertence, but held that those principles did not apply because here there was no real claim for mesne profits and the appellate decree intentionally omitted any reference to them.
Stay orders and deposit argument: The appellant argued the respondents had made themselves liable for mesne profits by virtue of Registrar's interim and conditional stay orders (which required deposits of Rs. 200 and later Rs. 300). The court examined the stay application and the Registrar's orders and concluded that these did not create a suretyship or any undertaking to pay mesne profits. Section 145 CPC did not apply because the respondents had not assumed the obligations enumerated in that section. The Privy Council decisions cited by the appellant were distinguished on the ground that they involved hypothecation bonds or express undertakings which are absent here.
Conclusion on maintainability: On the aggregate of these findings, the court concluded that the petition for ascertainment of mesne profits was not maintainable. The court agreed with the result reached by the learned Subordinate Judge (that the appellant was not entitled to mesne profits), though it reached that conclusion on grounds differing in part from those used by the Subordinate Judge.

Holding and Implications

Holding: Appeal dismissed.

Implications and direct consequences:

The appellant is not entitled to a decree for mesne profits for the period claimed because there was no specific plea for past or future mesne profits in the plaint as required by procedural law, and the appellate decree intentionally omitted any direction or allowance for mesne profits.
Deposits ordered by the Registrar in connection with a stay application did not create a personal undertaking or suretyship by the respondents to pay mesne profits; Section 145 CPC and the Privy Council authorities relied on by the appellant were distinguished and held inapplicable on the facts.
The appellant's application for ascertainment of mesne profits was not maintainable and the relief sought was refused; the appeal accordingly failed and was dismissed with costs.

Broader precedent impact:
The opinion applies and follows established authorities on the narrow question of pleadings and decree construction relating to mesne profits; it does not purport to lay down a new rule of law beyond these applications. In short, no new precedent was claimed to be established beyond the court's application of existing line authorities.

B/H.G.P

Show all summary ...

1. This second appeal by the plaintiff is directed against the judgment and decree passed by the learned third Additional Subordinate Judge of Patna dated 12-8-1949 by which the learned Subordinate Judge reversed the judgment and a final decree for mesne profits passed by the learned Munsif of Bihar on 20-9-1948. The material facts are the following. The appellant before me brought a suit for recovery of possession of 6.27 acres of land in village Kathauli, police station Bihar. The suit was numbered Title Suit No. 217 of 1940. The case of the appellant was that the land was the bakasht land of the landlords, who were defendants second party in the action, and it was settled with the present appellant by means of a registered document, dated 1-5-1940. It was alleged that the defendants first party (some of the respondents before me) dispossessed the appellant from the land. The appellant made two prayers—(a) a prayer for declaration of the appellant's title to the land and recovery of possession; and (b) in the alternative, a money decree against the defendants second party for Rs. 1,800/-, the amount for which the defendants second party had settled the land with the appellant, in case the appellant was unable to get a decree for possession. The learned Munsif who dealt with the suit in the first instance dismissed the action against the defendants first party but decreed it against the defendants second party for the money claimed. Two appeals were preferred which were heard by the second Subordinate Judge of Patna. One appeal was filed by the defendants second party and the other by the present appellant. The learned Subordinate Judge allowed both the appeals and held that the defendants first party had not acquired any right of occupancy in the lands in suit and they could not resist the title acquired by the present appellant on the strength of the settlement which had been made by the entire body of 16 annas landlords. The operative portion of the order of the learned Subordinate Judge read as follows: “The result is that both the appeals are allowed, the judgment of the learned Munsif is set aside and the suit decreed.” This was on 20-11-1944. There were two second appeals to this Court which were both filed by the defendants first party. These appeals were dismissed on the ground that they were concluded by findings of fact. This was on 23-12-1947.

2. On 19-3-1948, the appellant obtained delivery of possession. Thereafter, the appellant made an application for ascertainment of mesne profits for the period from 16-8-1940, which was stated to be the date of dispossession in para 12 of the plaint, to 19-3-1948, the date of delivery of possession. This application was contested by the defendants first party on two main grounds: (a) that the appellant did not claim mesne profits; and (b) that the learned Subordinate Judge who heard the appeal did not pass any preliminary decree for mesne profits and, therefore, the appellant was not entitled to ask for an ascertainment of mesne profits or for a final decree for such mesne profits. The learned Munsif negatived these contentions and held that the appellant was entitled to get mesne profits subject to a set off of a certain sum of money. In appeal the learned Additional Subordinate Judge held that the appellant was not entitled to any mesne profits. He allowed the appeal and dismissed a cross-objection which the appellant had filed with regard to the amount of set off. Hence this second appeal by the appellant.

3. Learned counsel for the appellant has contended before me that the learned Subordinate Judge was wrong in his view that the appellant was not entitled to a final decree for mesne profits. His contention is that on a true reading of the plaint it will be found that the appellant had claimed antecedent and future mesne profits, and the decree of the lower appellate Court, properly interpreted, allowed that claim; therefore, the appellant was entitled to ask for a final decree for mesne profits. In view of this argument it is necessary first to consider, with reference to the plaint and the decree passed by the lower appellate Court, whether mesne profits were claimed by the appellant and if any such claim was allowed by the lower appellate Court. In para 13 of the plaint occurred the following statements:

“The value of the raiyati interest in the disputed land is fixed at Rs. 1810/- and on payment of court-fee of Rs. 165/- thereon and of Re. 1/- on the amount of future mesne profits, that is, on payment of court-fees of Rs. 166/- in all, the plaintiff prays for the following reliefs, etc.”

4. The reliefs which were claimed were these:—

“1. It may be held by the Court that the disputed land has been settled with this plaintiff and the same was in his possession; the principal defendants 1st party had nothing to do therewith and as such their possession was illegal and wrongful and that the judgment in the case under Section 144 of the Cr PC is wholly illegal and based on surmises and is fit to be set aside. The same judgment may be declared null, void and inoperative and be set aside by the Court.

2. On adjudication of the above facts this plaintiff may be delivered possession on dispossession of the principal defendants 1st party.

3. That if for any reason the Court finds difficulty in delivering possession over the disputed land to this plaintiff on dispossession of the principal defendants 1st party, and if the plaintiff be deemed to be dispossessed therefrom and the possession of the disputed land be not delivered to him by the Court, in that case a decree for Rs. 1800/- besides interest at the rate of Re. 1 per cent, per month from the date of dispossession may be passed in favour of the plaintiff against the principal defendants 2nd party.

4. Costs in Court with further interest till the day of realisation may be made payable by the defendants liable for the same.

5. The plaintiff may be granted such other reliefs besides those sought for above, as he may be entitled to.”

5. The learned Munsif who dealt with the application for final ascertainment of mesne profits expressed the view that the statements in para 13 of the plaint, read with relief No. 5, showed that the appellant claimed mesne profits. The learned Subordinate Judge also appears to have accepted the view of the learned Munsif with regard to the plaint; but he expressed a doubt if any such claim of mesne profits was made at the appellate-stage. I have examined the plaint, the judgment passed by the learned Munsif in Title Suit No. 217 of 1940 as also the judgment and decree passed by the second Subordinate Judge of Patna in the two appeals which were heard by him from the decision of the learned Munsif in Title Suit No. 217 of 1940.

6. It seems to me from an examination of these-documents that there was really no claim for mesne profits and the appellant's suit proceeded on the footing of the two claims which he made, namely, for possession or, in the alternative, refund of Rs. 1800/- with interest. The learned Munsif who dealt with the suit in the first instance disallowed the claim of possession, holding; that the defendants first party were rightly in possession. The learned Subordinate Judge decided the question of title in favour of the appellant and said that the defendants first party could not resist the claim of the appellant. In the operative part of his judgment the learned Subordinate-Judge said: “The judgment of the learned Munsif is set aside and the suit decreed”. It is worthy of note that the decree prepared in the Court of Mr. S.N Choudhury the Subordinate Judge who allowed the appeal of the appellant showed that the appeal was valued at Rs. 1800/- only, which could not have included mesne profits either past or future. Even in the plaint there was no specific claim for mesne profits. Order 7. R. 2 of the CPC and Section 7, sub-section (1) of the Court-fees Act, require that the amount of past mesne profits claimed should be approximately stated in the plaint and ‘ad valorem’ court-fee should be paid on such amount. With regard to future mesne profits, the position is different, as it is not possible for the plaintiff to predict how long the litigation is going to last or to give an approximate-statement of the amount of mesne profits that may become payable at the end, of the litigation.

7. In the case before me the plaintiff-appellant seeks past mesne profits from 16-8-1940 to 3-9-1940, when the plaint was filed, and also future mesne profits from 4-9-1940, to 19-3-1948, when the appellant got possession. It is clear that the-plaint made no claim for past mesne profits in accordance with what is required to be stated in respect of such a claim under O. 7, R. 2 of the CPC. With regard to future mesne profits also, there was no specific claim apart from the statement that Re. 1 was paid as court-fees thereon. Under Section 11 of the Court-fees Act, no court-fees were payable on future mesne profits; therefore, the statement that Re. 1/- was paid as court-fees on future mesne profits hardly amounts to a specific claim for future mesne profits. At the appellate stage the appeal was valued at Rs. 1800/- only; that value did not include any claim for past or future mesne profits, nor any court-fees were paid thereon. The learned Munsif seems to think that relief No. 5 is wide enough to embrace a claim for mesne profits, on the principle that when a person obtains a decree for possession of immoveable property, the defendant would be answerable to the plaintiff for mesne profits until he delivers his possession to the decree-holder or, at least, relinquishes his possession with notice to the decree-holder through the Court. It is true that in empowering Courts to award future mesne profits, O. 20, R. 12 of the CPC, makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit; the object is to avoid multiplicity of litigation, as it would be clearly inconvenient and unfair that the person unlawfully kept out of possession of his lands should be obliged to file suits every three years for mesne profits accruing after the institution of his suit in ejectment. But the plaintiff in such a suit cannot claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit, though O. 2, R. 4, permits the joinder of it claim for mesne profits in a suit for recovery of immoveable property; therefore, it has been held that the power of the Court to award mesne profits subsequent to the suit is discretionary, and a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. It may even be open to the Court to grant future mesne profits as part of a general relief to which a plaintiff is entitled; but it is not correct to say that the Court is obliged to award future mesne profits when no claim for mesne profits is made, or that, when a claim for mesne profits is made either specifically or as part of a general relief, the Court must grant it. It is clear that in the case before me no specific claim for future mesne profits was made; nor was such a claim allowed. If it is assumed that the claim was part of relief no. 5, then the appellate Court did not allow such a claim. All that the appellate Court said was that the suit was decreed. In the circumstances of this case it would be natural to expect that if the Court were awarding mesne profits as part of relief No. 5 it would say so specifically; because relief No. 5 was in general terms, and unless a particular relief embraced within those general terms was specified in the judgment, it cannot be said that everything which the plaintiff-appellant may later think to be entitled to was granted under relief no. 5. In this connection it is apposite to quote certain observations from a decision of the Supreme Court in — ‘Mohd. Amin v. Vakil Ahmad’, AIR 1952 SC 358 (A). The observations occur at page 362 of the report and are the following:

“It was, however, pointed out by Shri S.P Sinha, that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression ‘awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto. We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint.”

8. In my opinion, these observations apply in the present case. The appellant had not really made any specific claim for mesne profits, and the appellate Court which allowed the appeal and said that the suit be decreed intentionally omitted any reference to a claim for mesne profits either in the judgment or in the decree. The present case is not a case where there is an omission by inadvertence, and the suit with regard to future mesne profits can be said to be still pending so as to entitle the appellant to ask for a decree for mesne profits. It is, I think, well established that where a claim for mesne profits is made and refused it is not open to the plaintiff to ask for an ascertainment of mesne profits. Similarly, when no claim for mesne profits is specifically made by the plaintiff and the Court awarding possession necessarily and intentionally omits any reference to a claim for mesne profits, it is not open to the plaintiff to say that the suit is still pending and he is entitled to make a claim for future mesne profits at a time when a large part of the claim is already barred by time. This point was raised and dealt with by a Division Bench of this Court in — ‘Lalji Singh v. Dwarika Singh’, S.A No. 166 of 1945 D/- 16-12-1948 (Pat) (B). Mahabir Prasad, J. who gave the leading judgment, said as follows:

“It is obvious that there being no direction in the decree passed in the suit for possession to the effect that the plaintiff was entitled to mesne profits which he could get ascertained in a subsequent proceeding, the application filed by the plaintiffs with a prayer for appointment of a commissioner for ascertainment of mesne profits could not be entertained by the Court, and the Court clearly had no jurisdiction to institute any such proceeding. The decree, therefore, for mesne profits passed by it, which is under appeal, is clearly without jurisdiction & must be set aside.”

9. It seems to me that the position is exactly the same in the present case.

10. In the view which I have taken with regard to the alleged claim for mesne profits in the light of the plaint of Title Suit No. 217 of 1940 and the decree passed by the second Subordinate Judge of Patna in the two appeals which were heard by him from the decision of the Munsif in that suit, it is unnecessary to examine in detail the case law with regard to a somewhat different position where a claim for mesne profits is made but the decree is silent with regard to such a claim or where the judgment allowes such a claim but the decree inadvertently omits it. Learned Counsel for the respondents referred to the decision in — ‘Gulusam Bivi v. Ahamadsa Rowther’, AIR 1919 Mad 998 (C), where Ayling, J. made the following observations:

“A simple suit for possession of specific immoveable property, uncomplicated by any question of partition, is governed specifically by R. 12 of O. 20, and it seems clear to me that in such a suit the final decree could only provide for mesne profits past or future where an inquiry into the same had been directed by the preliminary decree. If, either intentionally or inadvertently, the Court had omitted to direct such an inquiry, the aggrieved party must get the preliminary decree amended; no application for mesne profits not provided for in the preliminary decree would be entertained in framing the final decree.”

11. The decision in — ‘AIR 1919 Mad 998 (C)’ was considered in many subsequent decisions of the same High Court, and all the decisions bearing on the subject were reviewed in the Full Bench decision of the same High Court in — ‘Basavayya v. Guravyya’, AIR 1951 Mad 938 (PB) (D). It was rightly stated in the Full Bench decision that it was necessary to distinguish between three different types of cases in which a question of profits or mesne profits might arise: (1) for ejectment or recovery of possession of immovable property from a person in possession without title along with a claim for past and future mesne profits; (2) suits for partition by one or more tenants in common with a claim for account of past or future mesne profits; and (3) suits for partition by a member of a joint Hindu family with a claim for an account from the Manager. The case under my consideration belongs to the first class, and I do not propose to say anything regarding the other two classes of cases.

12. In the Full Bench decision referred to above, their Lordships accepted the position with regard to the first class of cases that where the preliminary decree intentionally omitted, that is to say refused to direct an enquiry into future mesne profits, that decision, subject to the result of any appeal, would be binding on the parties in all the subsequent stages of the suit and no application could be made for an enquiry into such profits. They pointed out, however, that where a decree awarding possession was silent with regard to an enquiry into future mesne profits and the decree had not completely disposed of the suit which, for one reason or another, continued to be pending there was nothing in the Code of Civil Procedure prohibiting the decree-holder from applying to the Court during the pendency of such a suit for an enquiry into future mesne profits or the Court from ordering such an enquiry. Their Lordships expressed the view that an order directing an enquiry into future mesne profits passed subsequent to the preliminary decree but during the pendency of the suit could not be said to be without jurisdiction. These observations have been relied on by learned Counsel for the appellant and he has contended that the principles enunciated in that Full Bench decision should be applied to the present case. Those principles cannot apply; because, in my view, the present case is one where no claim for mesne profits was really made, and the decree of the appellate Court intentionally omitted any reference to such a claim; in other words, the present case is not a case of inadvertence through silence or otherwise, and it cannot be said that the suit or appeal was still pending with regard to the claim for mesne profits. It is also unnecessary to examine the decision in — ‘Manmatha Nath v. Matilal Mitra’, AIR 1929 Cal 719 (E) where the plaintiff's right to mesne profits was allowed in the judgment but there was no specific direction in the decree except the general statement that the suit was decreed on contest, and it was rightly pointed out that the decree was not drawn up in accordance with the judgment but was to be construed as allowing mesne profits as claimed in the plaint. To the same effect was the decision in — ‘Kalidas Rakshit v. Saraswati Dasi’, AIR 1943 Cal 1 (P), where there was an accidental slip or omission of an express direction in terms of O. 20, R. 12(1)(c), in the judgment and it was held that the omission was a mere irregularity and could be supplied by the Court any time. The facts of the case before me really attract the principle laid down very clearly, if I may say so with respect, by Chandresekhara Aiyar. J. in — ‘Atcheyya v. Appalaraju’, AIR 1947 Mad 109 (G). His Lordship said:

“It (referring to the Madras amendment to O. 20, R. 12 of the CPC) does not say that, when there was no claim for future mesne profits in the suit and the decree, therefore, did not award any, still the Court can on an application proceed to ascertain such mesne profits and pass a final decree. For a final decree there must be a preliminary decree, and the preliminary decree must say something which the final decree is to carry into effect. Where the preliminary decree awards no future mesne profits, there can be no final decree awarding the same.”

13. His Lordship further pointed out that the observations made by Varadachariar, J. in — ‘Muthayya Kone v. Rakappan Ambalam’, AIR 1936 Mad 137 (H), on which observations learned Counsel for the appellant relied before me, did not lay down that where there was no claim for future mesne profits in a suit and where the decree did not award any future mesne profits, the court could either of its own accord or moved to do so by the decree-holder, declare in that suit liability for future mesne profits and ascertain the amount.

14. My conclusion, therefore, is that the learned Subordinate Judge correctly found in this case that the petition for the ascertainment of mesne profits was not maintainable, though for reasons somewhat different from those given by him.

15. I now proceed to consider the other branch of the argument of learned Counsel for the appellant. Learned Counsel has contended that by virtue of certain orders which were passed on a stay application made by the respondents when they filed a second appeal to the High Court the respondents made themselves liable for mesne profits either under Section 145 of the CPC or independently of that section. The stay application was marked Ex. 3, and para 6 of the application read as follows: “That in the plaint the future mesne profits have not been mentioned and Re.-1/- only was paid as court-fee for the mesne profits”. Paragraph 9 said: “That the opposite party will not be put to any loss as he will be amply compensated by mesne profits in case the appeal is dismissed by the Court as the petitioners have got other landed properties”. On this application the learned Registrar of this Court passed a preliminary order of stay on 21-2-1945. The order was in these terms: “Issue notice to the decree-holders. Stay ad interim. But this order will stand automatically vacated unless Rs. 200/- is deposited within twenty days of this order”. On 24-4-1945, the application for stay was finally heard and the learned Registrar passed the following order:

“The ad interim order of stay passed on 21-2-45 will be made absolute on the appellant's depositing in cash a further sum of Rs. 300/- within six weeks from this date; failing which the stay petition will stand rejected and the ad interim stay granted previously will also stand withdrawn. If these amounts are deposited, the respondents may withdraw them on giving sufficient security to the satisfaction of the Court below.”

16. On the basis of these orders learned counsel for the appellant contends that the respondents have made themselves liable for mesne profits. I am unable to accept this contention. Section 145 of the CPC, has, in my opinion, no application, for the simple reason that the respondents did not become liable as sureties; nor did they undertake any of the obligations mentioned in cls. (a), (b) and (c) of the section. As to any liability independent of Section 145 of the CPC, learned counsel for the appellant has placed reliance on two Privy Council decisions, — ‘Sadasiva Pillai v. Ramalinga Pillai’, 24 W.R 193 (PC) (I) and — ‘Raj Raghubar Singh v. Jai Indra Bahadur Singh’, AIR 1919 PC 55 (J). In my opinion, none of those two decisions apply in the present case. The respondents did not execute any security or hypothecation bond undertaking to pay mesne profits. No doubt they stated in their stay application that the appellant would be amply compensated by mesne profits. They did not, however, undertake to pay mesne profits as a condition for obtaining a stay order; nor did the Registrar impose any such condition. All that the Registrar directed the respondents to do was to deposit Rs. 200/- on the first occasion and Rs. 300/- on the second. The respondents deposited those amounts and under the order of the Registrar the appellant was entitled to withdraw those amounts. There was no undertaking by the respondents that they bound themselves to pay mesne profits as a condition for obtaining the stay order. The decision in — 24 W.R 193 (PC) (I)’ depended on certain hypothecation bonds in which a clear undertaking was given that in consideration of the judgment debtor being allowed to remain in possession pending appeal he would, if the appellant against him, account in that suit and before that Court for the mesne profits in question. In view of that undertaking it was held that he could not escape from that obligation. In — ‘AIR 1919 PC 65 (J)’ the security was in the form of hypothecation bond and it was held, on a true construction of the hypothecation bond, that it was an instrument of charge and not a bond imposing any personal liability on the appellants. It was further held that the appellants became sureties for the restitution of mesne profits according to the ultimate decision of the Court, and the Court had jurisdiction over the sureties to make an order as to their liability. In the case before me no undertaking to pay mesne profits was given and I fail to understand how from the orders of the learned Registrar any such undertaking can be spelt out. The decisions relied on by learned counsel for the appellant have really no application to the present case. For the reasons given above, I hold that the learned Subordinate Judge came to the correct conclusion that the appellant was not entitled to claim mesne profits. The appeal fails and is dismissed with costs.