John Beaumont, Kt., C.J.
1. In this case the following question has been referred to a full bench :-
Whether after a suit for partition and possession of lands and mesne profits past and future has been brought and decided and the decree fails to award the claim to future mesne profits, a second suit to recover mesne profits from the institution of the first suit or the date of the decree till delivery, of possession is barred under Section 11, Expln. v. of the Civil Procedure Code?.
2. The facts giving rise to the question are these. In 1923 a suit was brought by the plaintiff claiming partition of immoveable property, possession and mesne profits from the date of suit. In 1926 there was a compromise decree under which the plaintiff was to get two-thirds of the property and the defendant one-third, and the defendant was to effect partition and give delivery to the plaintiff of his two-thirds within fifteen days, and the plaintiff abandoned his claim to mesne profits. A dispute arose as to the partition which the defendant effected, and eventually the plaintiff filed darkhast proceedings to execute the decree and he finally got possession of his two-thirds in 1931. In 1932 he filed the present suit for mesne profits from the date of the decree in the previous suit till delivery of possession. The trial Court decreed plaintiff's claim, and there was an appeal to this Court. This Court held that the plaintiff had not abandoned his right to future mesne profits after the date of the decree, and on the finding of the Court it must be taken that the decree was silent as to such future mesne profits.
3. The question was then raised whether the plaintiff's claim to the future mesne profits was barred by res judicata under Section 11 of the Civil Procedure Code, and that question has been referred to a full bench mainly because the referring Court was not satisfied of the correctness of a decision of this Court in Atmmam Bhaskar v. ParashramBallal I.L.R. (1920) Bom. 954 : 22 Bom. L. R. 982 to which I will refer later.
Section 11 of the Civil Procedure Code provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation V is in these terms :-
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.
4. The argument of the appellant is this. He admits that the claim for possession and the claim for mesne profits arose from distinct causes of action, but under Order II, Rule 4, the plaintiff was entitled to join both claims in the suit, and under Order XX, Rule 12, the Court could have granted an inquiry as to future mesne profits and subsequently given a decree for the amount found due, The plaintiff being entitled to claim, as he did, future mesne profits in the first suit, and the decree being silent as to such mesne profits, it is argued that Section 11 read with Expln. V applies, and, as the claim for mesne profits might have been granted in the previous suit, it cannot be the subject-matter of the present suit.
5. If the matter were entirely res Integra, there would be, in my opinion, a good deal to be said in favour of the plaintiff's contention, but the matter is by no means res Integra. Explanation V to Section 11 of the Civil Procedure Code of 1908 is in exactly the same terms as Expln. III to Section 13 of the Civil Procedure Code of 1882, and under the latter section there was I think a pretty general consensus of opinion among the High Courts in India that the relief referred to in the Explanation meant relief arising out of a cause of action accrued at the date of the institution of the suit, and that such relief did not cover future mesne profits in respect of which the cause of action accrued subsequently to the suit. That was held in an elaborate judgment of the Calcutta High Court in Mon Mohun Sirkar v. The Secretary of State for India in Council I.L.R. (1890) Cal. 968 and by the Allahabad High Court in Ram Dayal v. Modan Mohan Lal I.L.R. (1899) All. 425. F.B. and also by this Court in Bhivrav v. Sitaram I.L.R. (1894) Bom. 532
6. It is a well established principle to be applied in the construction of Acts of Parliament that where a certain construction has been placed by the Courts upon words in an Act, and that Act is subsequently re-enacted in a later Act which uses the same words, the legislature must be taken to have known of the construction placed upon the old Act and to have intended to adopt it, unless there is something in the rest of the Act which negatives such a conclusion. Therefore the question arises whether there is anything in the Code of 1908 which would make the decisions under the earlier Code inapplicable, the language of the two relevant explanations being exactly the same.
7. It is contended that the omission from the new Act of a proviso which was contained in Section 244 of the old Act affects the question. Now Section 244 of the old Act has been substantially re-enacted in Section 47 of the new Act and in Order XX, Rule 12. Under Section 244 questions regarding mesne profits had to be determined in execution. Then there was a proviso that-
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.
8. It seems to me clear that that proviso presupposes that there was no other section in the Act which would bar such a suit. If the legislature imagined that Section 13 was a bar to the suit, it would have been unnecessary to provide that Section 244 should not be a bar. So that the proviso seems to me to presuppose that the legislature recognised that there was no other bar to a suit for future mesne profits contained in the Act. Under the new Act the provisions as to mesne profits have been varied. It is not now necessary to claim mesne profits in execution. Under Order XX, Rule 12, the Court has to direct an inquiry as to mesne profits and subsequently grant a decree for the amount found due, and in view of that alteration it was no doubt considered unnecessary to re-enact the proviso to Section 244. But in my judgment the omission of that proviso from the new Act has no bearing whatever upon the question whether Expln. V to Section 11 in the new Act should have placed upon it the same construction as had been adopted in relation to the corresponding Explanation in the old Act. The High Court of Madras in Doraiswami v. Subramania I.L.R. (1917) Mad. 188. and the High Court of Allahabad in Muhammad Ishaq Khan v. Muhammad Rus-tam Alt Khan I.L.R. (1918) All. 292 have held that there is nothing in the new Act which would justify them in placing upon Section 11 a different construction in relation to this matter from that which had been placed on Section 13 of the old Act.
9. But in Atmaram Bhaskar v. Parashram Ballal I.L.R. (1920) Bom. 954 : 22 Bom. L. R. 982 a division bench of this Court consisting of Sir Norman Macleod and Mr. Justice Heaton took a different view. The case there was one in which there was a decree for partition. The plaintiff had claimed both past and future mesne profits and the decree awarded past mesne profits but made no reference to future mesne profits, and it was held that a subsequent suit for the future mesne profits was barred under Section 11 of the Civil Procedure Code. The Court refused to follow the cases to which I have referred : Doraiswami v. Subramania I.L.R. (1917) Mad. 188. and Muhammad Ishaq Khan v. Muhammad Rustom Ali Khan I.L.R. (1918) All. 292 The Court relied to some extent on the omission of the proviso to Section 244 of the old Code, to which I have referred, and in my view that omission is irrelevant. But I think substantially the grounds on which the Court acted were that the language of Expln. V is wide enough to cover the relief asked for in the suit, i.e. a claim to future mesne profits, and the object of Section 11 of the Code being to avoid multiplicity of suits, the learned Judges thought that there was no justification for not giving the words of the section their natural meaning. As I have already said, if the matter had been res integra, there is I think a good deal of force in the reasoning of the Court. But the decision ignores the principle of construction to which I have referred, and for that reason in my view cannot be supported. The case has been dissented from by the Calcutta High Court and has been distinguished in this Court, and in point of fact I think that it can be distinguished from the present case. In Atmaram Bhaskar v. Parashram Ballal the Court was dealing with a decree for partition, and there was bound to be a good deal of delay before the partition was effected and, therefore, the question what was to happen to mesne profits in the meantime must have been present to the minds of the parties when the decree was taken. As was pointed out by this Court in Laxmibai v. Jagannath Ravji I.L.R. (1931) Bom. 292 : 34 Bom. L. R. 447 where you have a decree for immediate possession no question of future mesne profits arises if the decree is carried out, and the plaintiff is not bound to ask for relief which he does not want at the hearing. If subsequently, owing to default on the part of the defendant, or for some other reason, the decree is not carried out and the plaintiff is kept out of possession, he is not debarred from bringing a fresh suit for mesne profits ; in such a case the question of future profits was not directly in issue in the former suit. It may be that this suit could have been decided on a similar ground because it was contemplated by the parties that the plaintiff would get possession within fifteen days of the decree, whereas in fact he did not get possession for some five years.
10. But this matter has been referred to a full bench so as to raise the wider question whether the decision of this Court in Atmaram Bhaskar v. Parashram Balla I.L.R. (1920) Bom. 954 : 22 Bom. L. R. 982 can be supported. For the reasons which I have given, I am of opinion that the case was wrongly decided and should be treated as overruled, and the views of this Court on the question at issue should be brought into line with those of the other High Courts. We therefore answer the question propounded in the negative.
1. If it had been open to us to deal with the matter simply as one of construction of the language of the present Code I should myself have been disposed to agree with Atmaram Bhaskar v. Parashram Ballal I.L.R. (1920) Bom. 954 : 22 Bom. L. R. 982 on the construction of Expln. V to Section 11. Neither in that section itself nor elsewhere in the Code can I find any real justification for the rather narrow interpretation of the word ' relief' in the Explanation which has been accepted by the other High Courts. Nor is it at all clear to me, having regard to the language of Order XX, Rule 12, that the grant of relief in respect of future mesne profits if claimed, that is to say, the grant of an inquiry, is any more discretionary than the grant of relief by an order for possession. The word ' may ' is used throughout the rule. If a plaintiff makes out his case the Court is bound to award him possession. But similarly if he claims future mesne profits and makes out his case in that respect the Court, I should say, is equally bound to pass a preliminary decree and direct an inquiry.
2. If the matter had been res integra I should have said that the answer to the question referred to us would depend on whether the claim to future mesne profits was such and was dealt with in such a way that it could fairly be said that the matter was substantially in issue and was heard and finally decided by the Court. On that view Atmaram Bhaskar v. Parashram Ballal could be distinguished as it was distinguished in Laxmibai v. Jagannath Ravji I.L.R. (1931) Bom. 292 : 34 Bom. L. R. 447 But I agree with my Lord the Chief Justice that it is not open to us to take this view. There appears to be no doubt that under the old Code there was a consensus of opinion of practically all the High Courts to the effect that a separate suit for mesne profits subsequent to the suit would lie whether or not the plaintiff had asked for this relief, if the decree was silent on the subject. The principal grounds on which the Courts took this view were that the grant of this particular relief was discretionary under Section 211 of the old Code and that the words ' relief claimed ' in Expln. III to Section 13, which corresponded to the present Expln. V to Section 11, must be taken to apply only to what the plaintiff might claim as of right, that is to something which was included in his cause of action. Whether the reasoning in these cases is or is not convincing is not now material. The Explanation was re-enacted in the Code of 1908 without any alteration. This is one of the main considerations on which the other High Courts have now held that the legislature must have intended the law to be the same under the new Code. I agree that this argument has very great force and must be accepted as decisive. It follows that Atmaram Bhaskar v. Parashram Ballal must be held to have been wrongly decided and that the answer to the question referred is in the negative.
3. I agree with my Lord the Chief Justice that the question referred should be answered in the negative.