JUDGMENT
The plaintiff brought a suit (O. S. 408 of 1907 on the file of the District Munsif of Tirumangalam) for possession of certain lands, and for future mesne profits from the date of plaint till delivery of possession. He got a decree dated 12th April 1910 for possession only, which was confirmed on appeal and Second Appeal. His present suit (O. S. No. 239 of 1911) is for mesne profits from 1907 to 1910: and the sole question for disposal is whether this claim is res judicata by reason of the decree in O. S. No. 408 of 1907 which did not award mesne profits for this same period, though they were sued for. The appellant relies on a Full Bench decision of this Court (Kuppusamy Aiyar v. Venkataramier) reported in 15 M. L. J. 462, passed in 1903. This would undoubtedly be conclusive on the point, but for the changes introduced into the present Code of Civil Procedure, which, as it seems to us, place the matter on a totally different footing.
The basis of the decision in that case was that under the old Code the plaintiff could not ask for future mesne profits as of right, and could not be said to have a cause of action in respect of them: if the Court gave him a decree for them, it was in the exercise of a purely discretionary power conferred by sect. 211 of the Code of Civil Procedure, 1882.
Now in the new Code, Section 211 disappears altogether, and in O. 20, R. 12 the power of the Court to direct an enquiry into future mesne profits is put on precisely the same footing as the power of the Court to pass a decree for possession or for past mesne profits. There is nothing to indicate that the one relief is more a mattter of discretion and less of right than the others: and it could hardly be contended that where past mesne profits have been sued for, and not decreed, in a. previous suit, a subsequent suit for the same past mesne profits would lie.
In our opinion, the Full Bench Ruling above quoted had reference to the provisions of the law then in force and is not applicable to the case before us.
We observe that in his written statement, the respondent only pleaded that the matter was res judicata so far as mesne profits up to 12th April 1910 were concerned; although he asked for the dismissal of the suit altogether. In his Appeal Memorandum to the District Court, however, he pleaded (paragraph 6) that the whole claim was “not entertainable as res judicata.” Mesne profits after 12th April 1910 (date of the decree in the first suit) stand on just the same footing as those accruing during the pendency of the suit subject to the limitations set forth in O. 20, R. 12 (c): and we think the District Judge was justified in directing the dismissal of the whole suit.
The Second Appeal is dismissed with costs.
Appeal dismissed.