John Stanley, C.J. and Burkitt, J.
1. This is an appeal from a decree of the Additional Subordinate Judge of Ghazipur allowing the plaintiff's claim for mesne profits.
2. The circumstances out of which this appeal has arisen are shortly as follows: The plaintiff Ram Ratan Lal on the 6th of June, 1884, executed in favour of one Bindeshri Prasad a mortgage of his share in certain property to secure the principal sum of Rs. 4,000 and interest. Bindeshri Prasad subsequently, in the year 1887, transferred his interest in this mortgage to Mahadeo Dat Singh, the father of the defendant Sri Nath Sahai. On his father's death the defendant Sri Nath Sahai brought a suit on foot of his mortgage, and obtained a decree on the 21st of June, 1892. On the 12th of November, 1892, the plaintiff filed an appeal from this decree to the High Court, and whilst this appeal was responding the defendant, on the the of February, 1893, obtained an absolute order for foreclosure under Section 87 of the Transfer of Property Act, and on the 2nd of March, 1893, obtained possession of the mortgaged property. The High Court set aside the absolute order of the 6th February, 1893, and modified the decree of the 21st of June, 1892, and the plaintiff thereupon deposited in Court the amount found to be due on foot of the mortgage, except a small sum in respect of interest, which was subsequently paid. On the 16th of February, 1895, the plaintiff applied to the Court for restoration of possession of the property under Section 583, Civil Procedure Code, and also claimed mesne profits for the time during which the defendant held possession. The Subordinate Judge held that the plaintiff could not in execution proceedings recover mesne profits because the decree did not provide for mesne profits; that the proper course for the judgment-debtor was to institute a suit for mesne profits, and he dismissed the plaintiff's claim in respect of mesne profits. It is now admitted that the decision of the Subordinate Judge was wrong, and that lie had power under Section 583 of the Code of Civil Procedure to make an order for mesne profits. The plaintiff, however, acquiesced in the decision and instituted the present suit, with the result that by the decree of the Additional Subordinate Judge his claim has been in part allowed. Against this decree the defendant has appealed to this Court on the ground, among others, that the respondent having claimed mesne profits in his application for restitution, and the Subordinate Judge having disallowed the claim, the remedy of the respondent was an appeal against the order of the Subordinate Judge under Section 244 of the Code of Civil Procedure, and that the present suit was not maintainable.
3. We are of opinion that the contention of the appellant is well-founded. The decree of reversal passed by the High Court on the 21st of June, 1894, carried with it the right of the defendant in the suit to restitution of all that had been taken under the erroneous decree, and authorized the lower Court to cause restitution to be made accordingly. This was so held in the case of Raja Singh v. Kooldip Singh (1894) I.L.R. 21 Calc. 989 which followed other decisions to the like effect of the same High Court, and is not, so far as we are aware, in conflict with any ruling of this Court. It is contended, however, on the part of the respondent that, admitting that the lower Court was empowered to grant mesne profits in the execution proceedings, this fact did not preclude the plaintiff-respondent from bringing a suit to establish his claim to such profits. The answer to this contention is that, admitting that the plaintiff could have brought such suit, he did not do so in the first instance, but elected to put forward his claim to mesne profits in the execution proceedings, and when the claim was dismissed acquiesced in the dismissal of it and has not appealed. So long as the order of dismissal remains unreversed, it is a bar to any further proceeding in respect of the same claim. The matter has been decided by a Court competent to decide it, and has become in fact res judicata.
4. This, we think, furnishes a complete answer to this contention and also to the plaintiff's suit. For the foregoing reasons we are of opinion that the appeal should be allowed, and we accordingly allow it, set aside the decree of the lower Court, and dismiss the suit with costs in both Courts.