Fazl Ali, J.:— This appeal arises out of a suit for the recovery of mesne profits for a period extending from February 1915 to October 1922.

2. It appears that the father of the plaintiffs executed a sale deed in respect of 16 annas share of certain properties in favour of defendant 1 and the father and brother respectively of defendants 2 and 3 on 19th February 1915. The plaintiffs along with their mother, brought a suit (No. 387 of 1916) for a declaration that the sale deed was not binding on them in respect of their eight annas share in the property and they also claimed possession of that share. There was a further prayer in the plaint for the awarding of mesne profits from the date of the sale deed to the date of the delivery of possession. The suit was decreed on 22nd July 1918 and the eight annas share being exempted, the plaintiffs obtained delivery of possession of that share on 22rd October 1922. As to the mesne profits the trial Court observed that the parties had not joined issue on the point and so the question must remain open. On 10th July 1925 the plaintiffs brought the present suit in which they claimed mesne profits from February 1915 to October 1922. The learned Munsif passed a modified decree a ad that decree was upheld on appeal by the Subordinate Judge with certain further modifications. The defendants have now appealed to this Court.

3. It is now urged before us that the suit is barred under Section 11 of the CPC, and reliance is placed on Expln. 5 of that section which runs as follows:

“Any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of this section be deemed to have been refused.”

4. The claim of the plaintiffs as to mesne profits may be divided under two heads: (1) the claim in respect of the mesne profits which accrued from the date of the sale deed to the date of the institution of the previous suit; and (2) the claim in respect of these profits which accrued from the date of the suit to the date of the delivery of possession. As to the mesne profits which accrued from the date of the sale deed to the date of the institution of the suit, it is conceded by the learned advocate for the respondents that the suit must fail and so we are now concerned in this appeal only with the mesne profits which are said to have accrued subsequent to the date of the suit. As to these it is urged that although such mesne profits might have been recoverable under the Code of Civil Procedure of 1882 they cannot be recovered under the present Code, and reliance is placed on the case of Atmaram Bhaskar Damle v. Parasaram Ballal Kelhar (1) which lays down that if a claim for future mesne profits is made, and the decree is silent with regard to it, it must be taken to have been refused and a separate suit for such mesne profits will be barred under Expln. 5, Section 11 of the CPC. The question raised is not free from difficulty because it may be mentioned that a wholly contrary view has been taken by a Full Bench of the Madras High Court in the case of Doraisami Ayyar v. T. Subramania Aiyar (2) and by a Division Bench of the Allahabad High Court in Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan (3). The two conflicting views may be shortly summarized thus:

(1) According to the Bombay High Court, in consequence of certain changes in the Code of Civil Procedure, a case like the present comes directly under Expln. S.S 11 of the CPC, 1908 and the cases decided under the old Code are no longer any authority for the proposition that the decree of the Court in a suit for possession in which future mesne profits also were claimed being slient as to the mesne profits, a suit may yet be instituted for the recovery of such mesne profits.

(2) The view of the Madras and Allahabad High Courts however is that the law under the new Code is substantially the same as it was under the old Code, and even though the decree may be silent as to future mesne profits claimed in the plaint, a fresh suit may be brought to recover such mesne profits.

5. Now, it may be conceded at once that there are weighty arguments in support of both these views and the question raised has to be carefully examined. I shall first refer to the provisions of the Code of 1882 which would have governed a case like the present. These provisions are to be found in Sections 13, 211, 212 and 244 of the CPC (1882). Upon a construction of these sections it was held by almost all the High Courts in India that where a decree for possession is silent as regards the mesne profits which had accrued between the date of the institution of the suit and delivery of possession, a separate suit will be for such subsequent mesne profits: see Mon Mohun Sirkar v. Secy. of State (4), Bhivram v. Sita Ram (5), Ram Dayal v. Madan Mohan (6), G.S Hays v. Padmanand Singh (7) and Kuppuswamy Aiyar v. Venkatramier (8). In fact as early as in 1875 even previous to these decisions it was observed by the Judicial Committee that the law having been construed by a general consensus of the Indian Courts to mean that where a decree was silent as to mesne profits, the same could be recovered in a separate suit, their Lordships accepted that construction as settled law, whatever their own views might have been, had the question been res integra; see Sadasiva Pillai v. Ramlinga Pillai (9). It may however be mentioned that a reference to some of the decisions cited above will show that the question was not considered to be free from difficulty even under the old Code. The main argument however advanced in support of the view taken in these decisions was that the mesne profits that might accrue subsequent to the date of the institution of the suit formed no part of the cause of action on which the plaintiffs came into Court and therefore the plaintiffs could not as a matter of sight claim any decree for such mesne profits. It was thus argued that before the relief is barred, it must be shown that the relief claimed is one which the Court was bound to grant and not one which was discretionary with the Court to grant.

6. Now the view taken by the learned Judges who decided the case of Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan is that the decisions under the old Code must be followed unless it is shown that the legislature has, when enacting the present Code of Civil Procedure, altered the law. It is also pointed out that it is a recognized rule that where there have been decided cases before an Act is amended, if the amendment does not expressly show that the law as interpreted by the decisions is altered, the rule laid down by the decisions is to be adhered to. I am in entire agreement with this view and in my opinion in order to come to a proper decision in this case, it will be necessary to consider carefully as to whether the provisions of the new Code have materially altered the law in respect of the matter with which we have to deal. The best way to do it will be to compare the provisions of the two Codes which are as follows:

Code of Civil Procedure of 1882 Code of Civil Procedure of 1908. (1) Explanation 3, S. 13. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused. (1) Explanation 5, S. 11. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. (2) Sections 211 and 212. Section 211: When the suit is for the recovery of possession of immovable property yielding rent or other profit, the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession, to the party in whose favour the decree is made or until the expiration of three years from the date of the decree (whichever event first occurs), with interest thereupon at such rate as the Court thinks fit. Explanation.—“Mesne profits” of property mean those profits which the person in wrongful possession of such property actually received fir might with ordinary diligence have received therefrom, together with interest on such profits. Section 212: When the suit is for the recovery of possession of immovable property and for mesne profits which have accrued on the property during a period prior to the institution of the suit, and the amount of such profits is disputed, the Court may either determine the amount by the decree itself or may pass a decree for the property and direct an inquiry into the amount of mesne profits, and dispose of the same on further orders. (2) Order 20, R. 12. (1) Where the suit is for the recovery of possession of immovable property and for rent or mesne profits the Court may pass a decree: (a) for the possession of the property; (b) for the rent of mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits. (c) directing an enquiry as to rent or mesne profits from the institution of the suit until: (i) the delivery of possession to the decree-holder. (ii) the relinquishment of possession by the judgment-debtor with notices to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree whichever event first occurs. (2) Where an enquiry is directed under Cl. (b) or Cl. (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. (3) Section 244: The following questions shall be determined by order of the Court executing a decree and not by separate suit (namely): (a) questions regarding the amount of any mesne profits as to which the decree has directed inquiry; (b) questions regarding the amount of any mesne profits or interest which the decree has made payable in respect of the subject-matter of a suit between the date of its institution and the execution of decree or the expiration of three years from the date of the decree; (c) any other questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree or to the stay or execution thereof. Nothing in this section shall be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree therein, where such profits are not dealt with by such decree. If a question arises as to who is the representative of a party for the purposes of this section, the Court may either stay execution of the decree until the question has been determined by a separate suit or itself determine the question by an order under this section. (3) Section 47. (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by separate suit. (2) The Court may, subject to any objections as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees. (3) Where a question arises as to whether any person is or is not the representative of a party such question shall for the purposes of this section, be determined by the Court. Explanation.—For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.

7. It will thus appear that the most apparent change that has been made by the new Code is that whereas under the old Code the practice was that the Court executing the decree was called upon to make an inquiry as regards and to ascertain the amount of mesne profits, it has been provided by the new Code that the Court which hears the suit will be the Court ‘which’ will ascertain the mesne profits whether those mesne profits accrued before the institution of the suit or afterwards up to the delivery of possession and it is for this Court to make the final decree for mesne profits which has to be executed by the Court executing the decree. It may also be noted: (1) that the explanation to the section relating to res judicata is identical under both the Codes; (2) that Ss. 211 and 212 have been more or less combined into O. 20, R. 12; and (3) the provision made in S. 244 of the old Code which stated that-a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree therein, where such profits were not dealt with by such decree will not be barred, has been omitted and does not find place in S. 47 of the new Code. Now, at the first sight, it would appear that the omission of the proviso at the end of S. 244 has some significance as showing that the intention of the legislature was that suits for the recovery of mesne profits after a previous suit for possession cannot be maintained. In fact this is one of the? main arguments advanced in the decisions of the Bombay High Court in support of the view that the new Code has entirely changed the law. To me however it appears that to take this view will be to give undue importance to the change. Let us assume for the sake of argument that it was not the intention of the legislature to override the decision under the old Code and that what it meant was to effect no change in the law on the subject, the question arises as to where the proviso at the end of S. 244, which has now been omitted, should have been placed in the new Code. It could not have been inserted under S. 47 of the new Code which corresponds to S. 244 of the old Code because, as I have already pointed out, it is the Court which passes the decree and not the executing, Court which is to ascertain the mesne; profits under the new Code. It will thus appear that it would have been entirely meaningless to retain this provision under the new Code, and it would have been wholly out of place in S. 47 of the present Code. In other words, this proviso was inserted only by way of an: exception to the rule laid down in S. 244 which provided that certain questions-were to be finally determined by the Court of execution and not by separate suit and when the question of mesne profits was excluded from the cognizance of the Court of execution it was no longer necessary to provide an exception. In fact to me it appears that the fact that there was such a clause in the old Code may be taken to be an indication that in the view of the legislature there was nothing in the rest of the Code to bar a second suit for mesne profits because the proviso does not say that “nothing in the Code” or “nothing in S. 13” shall be deemed to bar a separate suit for mesne profits, but it says that “nothing in this section (namely, S. 244) shall be deemed to bar a separate suit” etc.

8. It will thus appear that the whole question as to whether a second suit for mesne profits is barred or not will have to be decided with reference to Expln. 5, S. 11 of the Code. As I have already pointed out this Expln. 5 is identical with Expln. 3, S. 13, of the sold Code. Thus if a subsequent suit for mesne profits is not barred under the old Code, there seems to be no reason why it should be barred under the present Code. As I have already said the question as to whether such a suit would be barred or not under the old Code is itself not free from difficulty. In fact some of the old decisions show that it was at least possible to take the opposite view and it was observed by the Judicial Committee in the case to which I have already referred that it was only on account of the general consensus of the Indian Courts that their Lordships accepted the construction placed by those Courts as settled law “whatever their own view might have been, had the question been res integra.” Thus when there have been a series of decisions under the old Code in support of the view that a subsequent suit for “future mesne profits” is not barred, and when it is clear that in spite of these decisions the legislature did not make any clear provision in the new Code to the affect that such a suit would be barred, I am inclined to think that we must follow the old decisions and hold that the suit is not barred.

9. Proceeding now to the principles underlying these decisions it will be found that they turn largely on the interpretation of the term “relief” as used in Section 13 of the old CPC, which, as I have already said, corresponds to Expln. 5, S. 11, of the present Code. It has been held in these decisions that the words “relief claimed” refer to a relief which the Court is bound to grant and not one which it is discretionary with the Court to grant. The most authoritative exposition of this view is to be found in the following passage which occurs in the judgment of Stratchey, C.J, in Ram Dayal…(Defendant); v. Madan Mohan Lal…(Plaintiff).* :

“The words ‘relief claimed’ in Expln. 3 apply only to something which forms parts of the ‘claim’ strictly so called, that is, something which the plaintiff may claim as of right, something included in his cause of action, and which, if he establishes his cause of action, the Court has no discretion to refuse. The words ‘relief claimed’ do not in my opinion, include something which the plaintiff cannot in the suit claim as of right, but can only claim in the sense of an appeal to the discretion of the Court, and which the Court may refuse in the exercise of its discretion, on grounds of general expediency or otherwise, even if the cause of action is fully established. As was pointed out by Sir Barnes Peacock in the Full Bench case to which I have referred the future mesne profits accruing after the institution of the suit do not form part of the cause of action, cannot be claimed as of right, could not, but for S. 211, be asked for at all, and may in any case be refused by the Court at its discretion.”

10. In the case of Doraswami Ayyar v. Subramania Aiyar , Wallis, C.J, adopted the following interpretation of the words “relief claimed” as used in Expln. 5, S. 11.

“The word ‘relief’ in the explanation means relief arising out of a cause of action which had accrued at the date of the suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of the suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant.”

11. These observations were criticized in the case of Atmaram Bhaskar Damle v. Parashram Ballal Kelkar by Macleod, C.J, in the following passage:

“It was held ‘that the word “relief” in the explanation meant relief arising out of the cause of action which had accrued at the date of the 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 arisen.’ Now, we have not been referred to any decision of this Court on the point. No doubt there are authorities to the effect that the relief claimed must have been one which the Court was bound to grant and not one which it was discretionary with the Court to grant; but I see no logical basis in this case for such a discretion.”

12. I would however say with great respect that although at first sight the proposition enunciated by Wallis, C.J, may appear to be a new proposition, it receives a good deal of support from the reasoning employed by Stratchey, C.J, in the case to which I have already referred. That reasoning has never been found fault with so far and it really amounts to this that the words “relief claimed” apply to something

“which forms part of the claim strictly so called, something included in the plaintiff's cause of action and which if he establishes his cause of action, the Court has no discretion to refuse.”

13. If therefore it appears that the relief for future mesne profits is one as to which no cause of action could have arisen at all at the date of the suit it is evidently something not included in the plaintiff's cause of action and is therefore a relief which the plaintiff was neither bound to include in the suit nor one which on the reasoning of Stratchey, C.J, he was entitled to claim as of right. It may also be mentioned here that Wallis, C.J, claims that his interpretation of the word “relief” was supported by a Full Bench decision of the Madras High Court and was in conformity with the decisions of other High Courts. Assuming however that the interpretation placed by Wallis, C.J, is not warranted by the language of the section or by any such authority as we are bound to follow and confining ourselves to what is now the accepted law that the words “relief claimed” refer to a relief which the Court is bound to grant and not to one which it is discretionary with the Court to grant, let us consider whether a claim for future mesne profits is one which the Courts are really bound to grant under the present Code. Now, it is well settled that the granting of such a relief was wholly discretionary with the Court under S. 211 of the old Code which provided that when the suit was for the recovery of possession of an immovable property, the

“Court may provide in the decree for the payment of mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made or until the expiration of three years from the date of the decree (whichever event first occurs), with interest thereupon at such rate as the Court thinks fit.”

14. As I have already said, this provision re-appears in the new Code as one of the clauses in O. 20, R. 12, with this difference only, that in the new Code all the reliefs which it is in the power of the Court to grant in a suit for possession are put together and enumerated in O. 20, R. 12. Now, the view that the awarding of future mesne profits was discretionary under the old Code was based on the use of the word “may” in S. 211 The word “may” is still used in O. 20, R. 12, and prima facie one would conclude that the granting of the relief for future mesne profits is still discretionary with the Court. It was however pointed out in Ramasami Iyer v. Srirangaraja Iyengar (10), which has since been practically overruled by the Full Bench of the Madras High Court

“that in O. 20, R. 12, the power of the Court to direct an enquiry into future mesne profits has been placed precisely on the same footing as the power of the Court to pass a decree for possession or for past mesne profits.”

15. It is thus argued that

“there is nothing to indicate that the one relief is more a matter of discretion and less of right than the others.”

16. To my mind this is the most weighty argument in favour of the view which the learned advocate for the appellant wants us to accept in this case and which is also the view taken by the Bombay High Court. This view however, as I have already pointed out, was not accepted by the Full Bench of the Madras High Court nor by a Division Bench of the Allahabad High Court and was met by Kumaraswami Sastri, J., in the Madras, case as follows:

“It has been argued that even as regards Cls. (a) and (b) the word used is “may” and not “shall”, though the Court is bound to pass-a decree in terms of Cls. (a) and (b) if plaintiff's claim is established. S. 212 of the old Code provides that the Court may either determine; the amount by the decree itself or may pass as decree for the property and direct an enquiry into mesne profits and dispose of the same out further orders, and the legislature in including, in one section what was embodied in two by using the word “may”, which occurred in both the sections, cannot be said to have introduced any new principle as regards future mesne profits. When different claims are dealt with in one rule under various sub-sections, the fact that the words “may” should be construed as “shall” in respect of one of the sub-sections, owing to the nature of the claim which it deals with, does not necessarily mean that the word; cannot be construed in its ordinary sense as regards other clauses. With all respect I am unable to agree with the decision in Ramasami Iyer v. Srirangaraja Iyengar , that the grouping in one section of past and future mesne profits affects the nature of future mesne profits so as to attract to it the provisions of Expln. 5, S. 11.”

17. Having carefully considered the matter I am inclined to follow the decision of the Madras Full Bench. The question really is whether if the legislature wanted to introduce a change in the law as laid down in the previous decisions it would have done so merely by combining the old Ss. 211 and 212 into one provision (O. 20, R. 12) and retaining the word “may” in the new provision. In my opinion if there was any such intention on the part of the legislature it would have been given effect to more clearly and more directly than by a mere re-adjustment of the old provisions such as is to be found in the new Code. Unless then there is an express change in the law, it is in my opinion too late now to disturb what has been laid down in a long course of decisions, viz. that a suit for future mesne, profits will not be barred even though such mesne profits may have been claimed and not expressly granted in a suit for possession. It may be that in arriving at this result the Courts have taken a somewhat narrow view of the expression “relief” as used in the res judicata section and it may also be that the view as to such relief being dependent upon the discretion of the Court, may also be open to argument.

18. Once however it is conceded that these points were just as arguable under the old as they are under the new Code, and that the decisions on these points under the old Code were correct, we cannot go behind them specially when it is clear that the new Code has introduced no substantial change in the law. Taking this view as I do I feel that I shall not be justified in holding that the present suit, though it would not have been barred under the old Code, is barred under the present Code. I may say here that in arriving at this decision I have not omitted to consider what has been represented to us to be one of the strongest arguments in support of the opposite view. This argument has been put forth with great clearness and force in the following passage in the judgment of Heaton, J., in the case of Atmaram Bhaskar Damle :

“Our law provides as a matter of principle a very important principle that the multiplicity of suits should be discouraged; that two suits should not he brought where one will suffice. That, broadly stated, is the principle, and it is given effect to by Section 11 of the CPC. Expln. 5 to that section says: “Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.” Now, in the earlier suit this relief of future mesne profits was expressly claimed. It was not granted and therefore apparently it must be deemed to have been refused, and if it is so deemed to have been refused, then the present suit clearly will no lie.”

19. Now it may be pointed out with great respect that this very argument could have been urged with equal force if the case was governed by the provision of the old Code, and yet the decisions under the old Code are unanimous that in the circumstances of the present case a suit for mesne profits could not have-been barred. It is also to be remembered that the Code itself does not compel a party to sue for future mesne profits when suing for possession and there is ample authority for the proposition that neither O. 2, R. 2 nor O. 2, R. 4 will bar such a suit if it is brought after the suit for possession is decreed. Thus when two different suits are permissible under the Code itself, there can be no presumption in favour of the view that S. 11 will bar a suit for mesne profits which have been asked for in the previous suit and not expressly granted simply because by taking such a view the multiplicity of suits will be avoided. In my opinion although it is very desirable that there should not be two suits where the question can be decided in one that is not a consideration which can in any case outweigh the consensus of judicial authority such as is to be found in decisions under the old Code.

20. There is also another aspect of the case which deserves consideration. The whole argument that the claim for mesne profits which have accrued after the institution of the title suit No. 387 of 1916 is barred is based upon the judgment delivered in that case by the Subordinate; Judge. The defendants have neither-placed on the record the plaint of the; suit nor the written statement filed on their behalf. This judgment says that in the plaint of the suit there was a prayer “that the past and future wasilat may be awarded to the plaintiff,” but as to the defence taken up in that case it contains, only the following recital:

“No written statement has been filed on behalf of defendants 1 to 3 who were duly served with summons. The purchasers, defendants 4 to 6, in their written statement mainly contend that the suit is barred by limitation and estoppel. That these defendants had no knowledge, of the partition suit or the injunction order issued in connexion there with, nor was any notice of it served on them. That the disputed property was the acquisition of defendants 1 to 3 and of lit. Ramdulari mother of Jagarnath, defendant 1 since deceased. That the partition suit spoken of was collusive, and the decree obtained in it was against the pleadings of suit. That these defendants got the kabala in question executed in good faith for value and for the legal necessity of the vendors.”

21. Thus there is nothing in the judgment to show how the defendants resisted the claim for mesne profits if they resisted it at all. Again, the issues framed in Suit No. 387 have also been reproduced in the body of the judgment and there appears to have been no issue framed with regard to the mesne profits. Lastly, the judgment concludes as follows:

“But as to the wasilat claimed no evidence has been adduced. P.W 4 simply says that he has sued for wasilat to the extent of Rs. 350 being the plaintiffs share of the income. This is not sufficient to award mesne profits and the parties have not joined issues on this point. The question of wasilat therefore must remain open in this action.”

22. The question which thus arises is as to whether this decision will operate as res judicata and bar the claim of the plaintiffs for mesne profits in the present suit.

23. Now, it must be remembered that all that Expln. 5 says is that:

“any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of this section to deemed be have been refused.”

24. We must however read this explanation along with the rest of S. 11 and if we do so we find that the real question is as to whether the claim for mesne profits was directly or substantially in issue in the previous case and if so whether it was heard and finally decided by the Court in that suit. In my opinion on the material on the record it is difficult to hold that it was heard and finally decided, and I think the plaintiff must succeed at least with regard to the mesne profits which have accrued since the date of the institution of the suit till the date of the delivery of possession.

25. It may be mentioned that the only other argument raised in this case on behalf of the appellant was that a portion of the claim was barred by limitation. I agree however with the lower Court that one of the plaintiffs being a minor no question of limitation can arise, and Section 7 of the Lim. Act, will apply in the case.

26. I would therefore uphold the decree of the lower Court within this modification: (1) that the plaintiff's suit will be dismissed so far as it relates to mesne profits which are said to have accrued from the date of the sale deed, namely 19th February 1915, to the date of the institution of the suit No. 387 of 1916, and (2) that the plaintiff will be entitled only to the mesne profits which have accrued from the date of the institution of the suit to the date of the delivery of possession, namely 23rd October 1922. The plaintiff should also get proportionate costs in all the Courts.

Das, J.:— On 19th February 1915 Jagarnath Prasad, the father of the plaintiffs, sold certain properties to the defendants. The plaintiffs thereupon instituted a suit to set aside the transaction of 19th February 1915, and to recover possession of the properties, the subject-matter of the conveyance of 19th February 1915; and for mesne profits from the date of the conveyance up to the date of the delivery of possession. On 22nd July 1918 the plaintiffs obtained a decree entitling them to recover possession of a moiety of the properties conveyed by Jagarnath Prasad to the defendants. The Court however left the question of mesne profits “open” between the parties. The plaintiffs obtained delivery of possession on 23rd October 1922. They instituted the present suit on 10th July 1925 for recovery of Rs. 1,177 as mesne profits from 19th February 1915 up to 23rd October 1922. The suit was resisted by the defendants. On the ground that the question as to mesne profits was res judicata between the parties. The Courts below have rejected the plea; and the defendants appeal to this Court.

27. In the argument before us it is conceded that the claim for mesne profits for the period up to the date of the institution of the previous suit is barred under the provisions of S. 11 of the Code, so that it follows that in any event the plaintiffs are not entitled to recover any mesne profits in respect of the period between 19th February 1915 and the date of the institution of the previous suit, which was Suit No. 387 of 1916. The question still remains whether the plaintiffs are entitled to recover the mesne profits for the period between the date of the institution of Suit No. 387 of 1916 and the date of the delivery of possession, namely 23rd October 1922. In my opinion the plaintiffs are not so entitled, it not being open to the plaintiffs to litigate the same question in two different litigations.

28. It is not disputed that in Suit No. 387 of 1916 the plaintiffs claimed mesne profits, not only up to the date of the institution of the suit, but up to the date of the recovery of possession of the disputed properties. The suit was resisted by the defendants. No doubt the Court left the question open, but Expln. 5, S. 11 of the Code provides that:

“any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of this section be deemed to have been refused.”

29. The question raised by the plaintiffs in this suit was directly and substantially in issue in the former suit between the parties; and the relief now claimed in the plaint must be deemed to have been refused under the express provision of Expln. 5. It seems to me that it is impossible to take the view that the provision as to res judicata has not application to the present case.

30. It was contended before us that there are numerous decisions under the Code of 1882 to the effect that, where a decree for possession is silent as regards mesne profits which have accrued between the dates of the institution of the suit and delivery of possession, a separate suit will lie, Ss. 13 and 244 of the Code being no bar to it, and it was urged that as the legislature has not expressed any intention in the Code of 1908 to depart from the well-established rule on this question, we ought to follow the decisions under the old Code in regard to this matter. The decisions upon which reliance is placed are Mon Mohun Sarkar v. Secretary of State , Bhivarav v. Sita Ram , Ram Dayal…(Defendant); v. Madan Mohan Lal…(Plaintiff).* , G.S Hays v. Padmanand Singh and Kuppusami Aiyar v. Venkataramier . When those decisions are analyzed, it will be found that they are based on two grounds. First, on the ground that S. 211 of the old Code was an enabling section and gave the Court a discretion to award future mesne profits which it was free to exercise or not according to all the circumstances of the particular case; and that, as the Court was not bound to award future mesne profits, the question did not come within the ambit of S. 13 of the Code. The argument adopted in the cases was as follows: When a plaintiff institutes a suit for recovery of possession of property and for mesne profits, he has no cause of action in respect of mesne profits accruing due after the date of suit and, but for S. 211 which is an enabling section, the Court would not be entitled to give the plaintiff a decree for mesne profits accruing due after date of suit. It is true, so the decisions admit, that the legislature, in order to avoid a multiplicity of suits, has empowered the Court, in an action for the recovery of possession of property, to assess the damages accruing due after the date of suit and during the continuance of the trespass; but the section is in no sense imperative or obligatory; it merely vests the Court with a discretionary power; and the decisions upon which reliance is placed assume that a relief which is in the discretion of the Court either to grant or refuse may be claimed again in another suit, S. 13 being no bar to it. The second ground put forward in those decisions is that the penultimate clause of S. 244 clearly showed that the mere abstention of the Court to award mesne profits accruing due after date of suit would not be a bar to any suit in respect thereof. The question which we have to consider is first, whether it can be said that O. 20, R. 12, which corresponds to S. 211 of the old Code, is an enabling section; and, secondly, what view is to be taken of the undoubted fact that the penultimate clause of S. 244 finds no place in the present Code.

31. In order to understand the old decisions it is well to refer to S. 211 and S. 244 of the old Code. S. 211 provided as follows:

“When the suit is for the recovery of possession of immovable property yielding rent or other profits, the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession of the party in whose favour the decree is made or until the expiration of three years from the data of the decree (whichever event first occurs) with interest thereupon at such rate as the Court thinks fit.”

32. It is to be observed that S. 211 deals with one question and one question alone, namely the power of the Court to decree mesne profits accruing due after data of suit. The word used in S. 211 is “may,” and it has been held that the word “may” is a word merely making that legal and possible which there would otherwise be no right or authority to do, and that therefore the section gave the Court a discretion to award future mesne profits which it was free to exercise, or not, according to all the circumstances of the particular case. If there were no other section in the Code to throw any light on the question, I would hesitate to hold that S. 211 of the old Code was purely an enabling section. The case upon which reliance was placed in Ram Dayal…(Defendant); v. Madan Mohan Lal…(Plaintiff).* is Julius v. The Lord Bishop of Oxford (11). In that case it was no doubt laid down that the words in a statute “it shall be lawful” (which words may be taken to be equivalent to the word “may”) of themselves merely make that legal and possible which there would otherwise be no right or authority to do; but it was admitted that there may be circumstances which may couple the power with a duty to exercise it. The House of Lords examined all the authorities on the question and expressly upheld the decision in Macdougall v. Paterson (12). In the flatter case it was laid down that where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by the parties interested and having the right to make the application. The Court in that lease had to construe Section 13 of the County Court Extension Act which provided that in certain cases the Court or a Judge at Chambers may by rule or order direct that the plaintiff shall recover his costs. It held that the word “may” in that section is not used to give a discretion, but to confer a power upon the Court and Judges; and that the exercise of such powers depended, not upon the discretion of the Court or Judge, but upon the proof of the particular case out of which such power arose. In my opinion therefore the mere use of the word “may” in S. 211 does not decide the case; but that section read with the penultimate clause of S. 244 clearly showed that S. 211 was a purely enabling section.

33. It will be remembered that under the old Code questions regarding the amount of mense profits had to be determined by the order of the Court executing a decree and not by a separate suit; but the penultimate clause provided as follows:

“Nothing in this section shall be deemed to bar a separate suit for mesne profits accruing between the institution of the suit and the execution of the decree thereon where such profits are not dealt with by such a decree.”

34. It followed from the use of the word; “may” in S. 211 read with the penultimate clause of S. 244 that S. 211 was a purely enabling section, and that the Court was free not to deal with the question of mesne profits accruing due after the institution of the suit, and that where such profits are not dealt with by such decree, it is open to a party to institute a separate suit for mesne profits accruing between the institution of the suit and the execution of the decree. I now turn to the relevant sections in the Code of 1908.

35. The first provision which I must consider is that contained in O. 20, R. 12. That section provides as follows:

“(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree: (a) for the possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits; (c) directing an inquiry as to rent or mesne profits; from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event, first occurs.

(2) Where an inquiry is directed under Cl. (b) or Cl. (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.”

36. It will be noticed that whereas S. 211 dealt with one question only, namely the power of the Court to award mesne profits accruing due after date of the suit, O. 20, R. 12, deals with the power of the Court to pass a decree: (1) for the possession of the property; (2) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit; and (3) for the mesne profits accruing due after date of suit. No doubt the word used in O. 20, R. 12, is “may.” If the natural meaning of that word be permissive and enabling only, then I ask myself the question: (1) whether the section gives the Court a discretion to pass a decree for the possession of the property which the Court is free to exercise or not according to all the circumstances of the particular case and (2) whether the section gives a similar discretion to the Court to award mesne profits which have accrued on the property during a period prior to the institution of the suit. If the word “may” means “shall” in so far as it controls paras, (a) and (b), O. 20, R. 12(1), then, in my judgment, it must have the same meaning so far as it controls para. (c). To take any other view is to say that the legislature has used the same word in the same section in two senses. It is not disputed that so far as the decree for the possession of the property is concerned, there is no discretion in the Court at all and that, provided the, party makes out a case, and establishes his case on merits, the Court is bound to pass a decree in his favour for the possession of the property. It is conceded that the Court is also bound to give the successful party a decree for mense profits which have accrued on the property during a period prior to the institution of the suit. In other words it is conceded that the word “may” in O. 20, R. 12, means “shall” for the purposes of paras, (a) and (b), O. 20, R. 12(1). But it is contended that for the purposes of para. (c) the same word “may” merely gives the Court a discretion which it is free to exercise or not. With all respect, I am unable to accept this novel way of construing a statute; for, as I have said, I cannot impure to the legislature an intention to use the same word in the same section in two senses.

37. And a consideration that the penultimate clause of S. 244 has not been introduced in the Code of 1908 leads to the result that there is no longer a discretion in the Court to refuse to adjudicate a claim as to mesne profits accruing due after date of suit. It is argued that there is no object in enacting the penultimate clause of S. 244, since mesne profits are no longer ascertained in execution proceedings; but I apprehend that the legislature would have found no difficulty in introducing that clause somewhere in the Code if it meant to provide that nothing in the Code shall be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree thereon, where such profits are not dealt with by the decree in the first suit. I regard the omission to re-enact the penultimate clause of S. 244 as significant; and I can see no answer to the argument that clause not forming part of the present Code, it is impossible to take the view that O. 20, R. 12 is an enabling section and gives the Court a discretion to award future mesne profits which it is free to exercise or not as it chooses.

38. I should like to say a word as to the use of the word “may” in the statute. Prima facie the word “may” is an enabling word; but there is no doubt whatever that under certain circumstances enabling words may have a compulsory force. It is a question in each case whether the power conferred by the use of the word “may” is one which is intended by the legislature to be exercised, and there is no doubt on the authorities that, although the statute in terms has only conferred a power, the circumstances may be such as to create a duty. Lord Selborne, in his speech in Jullis v. Lord Bishop of Oxford at p. 235, put the point in this way:

“The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved; from the contest, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.”

39. Now, if we have to seek for a clue in the context, in the particular provisions, and in the general scope and objects of the enactments, we have to take note of the clear intention of the legislature that this particular provision in O. 20, R. 12, was enacted in order to avoid a multiplicity of suits. It may be argued that the legislature had the same object in view in enacting S. 211 of the old Code. This is no doubt true; but the penultimate clause of S. 244 itself showed that the legislature did not in any way compel the Court to decide the question of mesne profits accruing due after date of suit. But in the new Code the position is entirely different. We know that the legislature has enacted this particular provision of O. 20, R. 12, in order to avoid a multiplicity of suits and we know that there is no other provision in the Code as there was in the Code of 1882, to indicate that the provision in O. 20, R. 12 gives the Court a discretion which the, Court is free to exercise or not. This, being the position, it seems to me that the context, the particular provisions, and the general scope and objects of the enactment lead to the inference that the power given to the Court by the use of the word “may” was intended by the legislature to be exercised on all occasions on which the successful claimant establishes his right on merits. I adopt the view taken in Macdougall v. Paterson affirmed, as it was, in the House of Lord's case, to which I have just referred that where a statute confers an authority to do a judicial act in certain cases, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application. I take the view that under the new Code, consequently under, O. 20, R. 12 of the CPC the Judge to whom power is given by the word “may” to decide a question of mesne profits accruing due after date of suit is bound to exercise it when the case arises, and its exercise is duly applied for by the parties interested and having the right to make the application. Now, if this be so, then, in my judgment, it follows that these was no power in the Court in the former suit to leave the question “open.” In any event the relief was claimed in the plaint and was not expressly granted by the decree and must, under Expl. 5, S. 11, be deemed to have been refused.

40. In my judgment the plaintiff's suit should have been dismissed as barred by res judicata. I would therefore allow the appeal, set aside the judgments and the decrees passed by the Courts below, and dismiss the plaintiff's suit with costs in all the Courts. But, as my learned brother takes a different view, the appeal must be heard under S. 98 of the Code, upon the point on which we differ, by one or more of the other Judges of this Court. The point of law on which we differ may be stated in these terms: Where a decree for possession of immovable property is silent as regards mesne profits which have accrued between the dates of the institution of the suit and delivery of possession, though claimed in the suit, does a separate suit be to recover such mesne profits, or does Section 11 of the CPC, constitute a bar to such a suit. Let the record be placed before the learned Chief Justice for the necessary order.

On Reference

Wort, J.:— This matter has been referred to me on a difference of opinion between my learned brothers Das and Fazl Ali, JJ.

41. The question arises in the following circumstances. The plaintiffs brought a suit for possession of certain property. The relief claimed included a claim for mesne profits from a date prior to the institution of the suit up to the date of delivery of possession. The Court in giving the plaintiff a decree on 22nd July 1918 left the matter of mesne profits open. In the events which happened the plaintiffs obtained possession on 23rd October 1922. On 10th July 1925 they instituted a suit out of which this appeal arises claiming the mesne profits up to 23rd October 1922. It is now admitted that a claim up to the date of the institution of the former suit cannot be maintained. But the question arises whether in this suit they are now entitled to recover mesne profits from the date of the institution of the former suit up to the date of delivery of possession of the property. The matter is a difficult one and necessitates a consideration of S. 11, S. 47 and O. 20, R. 12 of the CPC, A number of authorities have been dealt with in the judgments of my learned brothers Das and Fazl Ali, JJ., a number of which were decisions under the old Code. When the matter came before me the learned advocates appearing for the respective parties did not consider it necessary to advance any detailed arguments and neither before me nor before the learned Judges from whom this reference comes was the case Ramjanam Singh v. Khub Lal Singh (13) quoted. This is a decision in point by the learned late Chief Justice and Foster, J., holding that in similar circumstances, not dissimilar to those of the present case, a second suit for mesne profits was not barred and that in the circumstances I am not prepared to dissent from that view of the law which is in agreement with that expressed by my learned brother Fazl Ali, J. In the circumstances therefore I would agree that the appeal should be dismissed and that the plaintiffs be entitled to recover mesne profits excepting so far as they relate to a period between 19th February 1915 and the date of the institution of Suit No. 387 of 1916, that is to say, the plaintiffs should be entitled to recover mesne profits from the date of the institution of that suit up to 23rd October 1922 with proporationate costs throughout.

V.B/R.K

42. Appeal dismissed.