1. This is a plaintiff's ap peal arising out of a suit for recovery of possession. This case has a long history behind it, which it is not necessary to recite at length. For the purpose of this appeal the facts may be briefly stated as follows:
Certain mortgagees brought a suit for sale against the original mortgagor and against one Mt. Sheo Lagna, an ostensible transferee of the property. When impleaded she stated to the Court that she was not the real owner, but that her sons were the real owners and they ought to be impleaded. The mortgagees for some reason not quite apparent resisted the attempt to bring the sons of Mt. Sheo Lagna on the record. They obtained a decree against the lady behind the back of her sons. They put to sale the right, title and interest of Mt. Sheo Lagna, and themselves purchased that right, title and interest at an auction sale. They then applied for possession which was formally granted to them in the year 1900. On the strength of this formal delivery of possession they succeeded in ousting the sons, who had not been made parties to the mortgage suit at all. In 1911 the sons instituted a suit to recover possession of the property on the ground that they were the real owners and that they had been wrongfully dispossessed. It is important to note that, in addition to the relief for possession the sons claimed not only past mesne profits but also pendente lite and future mesne profits. The first Court dismissed the suit, but the District Judge remanded it. This case came up in appeal to the High Court and it was finally decided between the parties that the former litigation did not operate as res judicata against the plaintiffs and the remand order was upheld, vide Mata Prasad v. Ram Charan Sahu  36 All. 446. On the 9th of July 1915 the trial Court decreed the plaintiffs' claim on payment of a certain sum. On appeal the District Judge upheld the conditional decree but reduced the amount. On the 20th July 1920 the High Court in second appeal held that the plaintiffs had been wrongfully dispossessed by the auction purchasers and were accordingly entitled to an unconditional decree for possession without payment of any amount whatsoever. The learned Counsel who appeared for the plaintiffs apparently did not bring to the notice of the High Court that the plaintiffs had in the plaint claimed mesne profits pendente lite and future. There was accordingly an omission to make any order as regards mesne profits which had accrued.
2. The plaintiffs did not apply for a re view of judgment and did not take steps to obtain any decree for means profits in their favour. But on the 10th of May 1922 they instituted the present suit for recovery of mesne profits from the 16th of December 1911 till the 3rd of September 1917, namely from the date of the institution of the previous suit till the date of the delivery of possession of the property to them. This suit was contested by the defendants on the ground that the present claim was barred by the principle of res judicata on account of the previous litigation, and that in any case part of the claim was barred by time.
3. The learned Subordinate Judge relying on certain rulings of this High Court has held that the present suit is not barred by the principle of res judicata. He has, however, held that the claim to recover mesne profits for more than three years prior to the present suit is barred by time.
4. The plaintiffs have come up in appeal and challenge the finding as regards the question of limitation. The learned Counsel for the respondents, however, have further urged that the suit is barred by the principle of res judicata.
5. There can be no doubt that under the old Code of Civil Procedure it was held by almost all the High Courts that a subsequent suit for recovery of mesne profits which had accrued since the institution of a previous suit is not barred by the principle of res judicata, even though that amount had been claimed in the former suit. We may mention the Full Bench case of Ram Dayal v. Madan Mohan Lal  21 All. 425, which was followed in the case of Ram Din v. Bhup Singh  30 All. 225. This view was followed by the Calcutta and the Madras High Courts also,
6. Under the old Code there was a separate section, Section 211, dealing with mesne profits which accrued from the date of the institution of the suit until the delivery of possession. This was separate and distinct from Section 212 which dealt with mesne profits prior to the suit. In addition to these sections there was a proviso to Section 244 in the following words:
Nothing in the 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.
7. It has also to be noted that under the old Code, the mesne profits had to be determined in the execution department which conducted an enquiry after the passing of the decree. It was, therefore, held by the Full Bench of this Court in the case of Ram Dayal v. Madan Mohan Lal  21 All. 425, that
Where a suit has been brought for possession of immovable property and for mesne profits both before and after suit, the mere omission of the Court to adjudicate upon the claim for future mesne profits will not operate as a bar to a subsequent suit for mesne profits accruing due after the institution of the former suit.
8. Strong reliance was placed on the word 'may' used in Section 211 and the proviso to Section 244. The view as stated above was accepted by the other High Courts.
9. The new Code of Civil Procedure has brought about a substantial change. In the first place mesne profits are not now determined in the execution department, by the Court disposing of the suit. Order 20, Rule 12 deals with mesne profits both prior to the suit and from the institution of the suit, and provides what decree the Court may pass when a suit for the recovery of possession of immovable property and for rent or profits, is instituted. It would be difficult to hold that the word 'may' used in this rule would merely indicate a discretion of the Court with reference to Clause (a) dealing with a decree for the possession of the property. Even if the Court passes a preliminary decree in the first instance a final decree in respect of the rent or mesne profits has to be passed after an enquiry has been made.
10. It is further to be rioted that from Section 47, which corresponds to the old Section 244 the proviso referred to above has been omitted, though of course the omission is due mainly to the fact that the mesne profits are no longer to be determined in the execution department.
11. In spite of the changes introduced in the new Code two out of the three learned Judges of the Madras High Court in the case of Doraiswami v. Subramania  41 Mad. 188, held that a fresh suit to recover mesne profits was not barred by Section 11. The dissenting Judge adhered to the contrary view expressed by him and another learned Judge in the case of Ramaswami Aiyar v. Sri Rangaraja Aiyangar  2 L.W. 8. The view of the majority was followed, by a Bench of this Court in the case of Ishaq Khan v. Rustam Ali Khan  40 All. 292 where it was held that the principle enunciated in the Full Bench case of this Court was applicable even under the new Code and that a subsequent suit for mesne profits pendente lite and future could be maintained when the Court had on a previous occasion omitted to adjudicate upon such claim. In the opinion of the learned Judges who decided that case the alterations in the new Code were not material so far as this point was concerned.
12. The Allahabad and the Madras cases however have not been followed by the Bombay High Court in the case of Atmaram Bhaskar v. Parashram Ballal  44 Bom. 954.
13. It is certainly a point for consideration whether, when a relief for pendente lite and future mesne profits was specifically claimed in the plaint and it was not granted intentionally or owing to an oversight that relief cannot be deemed to have been refused within the meaning of Explanation (5) to Section 11 of the Code of Civil Procedure. In this particular case however we do not think it necessary to go into this question as the appeal can be disposed of on the other ground raised, namely that of limitation.
14. The claim to recover mesne profits is prima facie governed by Article 109 of the Limitation Act under which the period of three years begins to run from the date when the profits were received. The learned advocate for the appellants has to concede that if this article were to be applied the claim for profits prior to three years before the suit is barred by time. He has however tried to meet this difficulty in two ways, firstly by contending that the finding of limitation was suspended during the time when the previous litigation was pending, or at any rate from the date when the first Court passed a conditional decree till the date of the High Court's decree; and secondly that the cause of action for the present suit arose after the passing of the High Court's decree.
15. The first contention is based on certain observations of their Lordships of the Privy Council and certain judgments of the Calcutta High. Court, It is urged that independently of the provisions of the Indian Limitation Act there is a general principle of universal application that if circumstances exist which render a suit or an application infructuous, a party should not be compelled to institute it until the impediment in his way is removed, or in other words, that where a party in whose favour a cause of action has arisen cannot usefully pursue the remedy at the time, his right of action is postponed to a subsequent date.
16. There are no doubt certain remarks in some of the judgments of their Lordships of the Privy Council going to show that under special circumstances 'proceedings in the earlier suit stayed that operation of the law of limitation,' or that
limitation would without doubt remain in suspense whilst the plaintiffs were bona fide litigating for their rights in a Court of justice.
17. It is also equally true that the Calcutta High. Court has applied this principle to some cases which on facts had gone beyond those before their Lordships. Reference may be made to the case of Dwijendra Narain v. Jogesh Chandra : AIR1924Cal600 and the numerous cases referred to therein, where it was held that under certain circumstances the right to sue could be kept in a state of suspended animation. As the Calcutta cases are not binding upon us it is not necessary for us to discuss them in detail. We may however point out that in a more recent case of Sarat Kamini Dasi v. Nagendra Nath Pal A.I.R. 1926 Cal. 65 the Calcutta High Court adopted the view that in applying the principles of limitation the Indian Courts are not permitted to travel beyond the provisions embodied in the Limitation Act and that apart from the provisions of that Act there is no principle which can legitimately be invoked to add to or supplement its provisions.
18. The Indian Limitation Act is undoubtedly an exhaustive Code governing the law of limitation in India. The cases in which the running of limitation can be suspended are contained in the sections of the Act. It would be dangerous to lay down generally that there is some principle outside the Limitation Act under which limitation can be suspended. Such a conclusion would be quite contrary to the intention of the legislature. Their Lordships of the Privy Council in the case of Soni Ram v. Kanhaiya Lal  35 All. 227 themselves remarked that there was nothing in the Limitation Act which would justify the Board in holding that once the period of limitation had begun to run it could be suspended. Their Lordships considered that if they were to hold that by some reason the period of limitation was suspended they would be deciding contrary to the express enactment of Section 9 that 'when once time has begun to run no subsequent disability or inability to sue stops it.' This remark of their Lordships clearly indicates that the period of limitation cannot be suspended once it has begun to run unless that suspension is itself provided for in the Act. We are therefore unable to accept any universal principle of suspension of limitation outside the Limitation Act.
19. It is only at first sight that some of the cases decided by their Lordships of the Privy Council appear to have been based on some principle outside the statute. When the facts of those cases are carefully examined it will be found that the decisions are perfectly reconcilable with the Limitation Act. In any case we would be loath to extend any such principle beyond the limits laid down by their Lordships of the Privy Council.
20. In the case of Bassu Kuwar v. Dhum Singh  11 All. 47 the decree in the previous suit had brought about a new state of things and imposed a new obligation on Dhum Singh. Their Lordships viewed the matter in either of two ways, namely, according to Section 65 of the Contract Act or Article 97 of the Limitation Act, according to both of which the plaintiffs claim was not barred by time. On the facts of that case it is impossible to hold that any general principle outside the four corners of the Limitation Act was ever intended to be laid down by their Lordships. In the case of Baijnath Sahai v. Ram Gat Singh  23 Cal. 775 all that their Lordships held was that for the purpose of the law of limitation there was no final, conclusive and definitive order confirming the sale, while the question whether the sale should be confirmed was in litigation, or until the order of the commissioner became definitive and operative by the final judgment of the Board of Revenue. In that case their Lordships were considering Article 12 of the Limitation Act and trying to ascertain when the sale was confirmed 'or would otherwise have become final and conclusive, had no such suit been brought.' No question of suspension of time at all arose there.
21. The case of Hem Chandra Chaudhari v. Kali Prasanna Bhaduri  30 Cal. 1033 was a peculiar case and its facts have to be considered carefully. In 1888 it was established by a decree of the High Court that a certain tenure was of a nature liable in law to an enhancement of rent. In December 1890 a suit was brought against certain talukdars claiming to enhance the rent previously paid and to recover rent from the beginning of the year 1298 as an enhanced rent. The Subordinate Judge gave the plaintiff a decree for rent at an enhanced rate, but not to the extent claimed in the plaint and not for the Bengali year 1298 F. Another similar suit was subsequently instituted which was tried along with the first suit. There were four appeals from these decrees which were disposed of by the High Court. After the decision of the Subordinate Judge in the previous cases, the plaintiff in November 1895 filed a fresh suit to recover rent from the defendants at the enhanced rate adjudged by the Subordinate Judge from April 1891 to October 1895, thus including in the suit a claim to rent for a portion of the Bengali year 1298 F. The Subordinate Judge decreed the claim at the enhanced rate except for the year 1298 holding that claim having been included in the previous suit of 1890 was barred. There were two appeals out of this suit to the High Court which held that the claim for rent for the year 1298 was not, barred by res judicata but was barred by time. There were consolidated appeals in both the suits to their Lordships of the Privy Council which were disposed of by one judgment. It is to be noted that the claim for rent in the first suit had been disallowed on the ground that it was premature as the cause of action to recover rent for that period had not accrued on the date when the suit was instituted. This claim was again included in the subsequent suit both of which came simultaneously before their Lordships for final disposal. Their Lordships then held that inasmuch as the plaintiff was claiming relief in the former suit which could not be granted the proceedings in the earlier suit stayed the operation of the law of limitation.
22. It is possible that the disallowance of the relief might be said to be due to a 'defect of jurisdiction or other cause of a like nature' which rendered the Court unable to entertain it. The period taken up in the former litigation could therefore be deducted under Section 14 of the Limitation Act, It is therefore possible to hold that their Lordships did not mean to do anything more than to apply the provisions of Section 14 of the Limitation Act, although they did not expressly say so.
23. Similarly the case of Nrityamoni Dassi v. Lakkhan Chandra Sen  43 Cal. 660 was an exceptional one. In a previous suit of 1896 certain defendants had associated themselves with the plaintiffs in that action and had asked for an adjudication in those proceedings of their rights. A distinct issue was framed in respect of their claim. The Subordinate Judge actually passed an effective decree in their favour for delivery of possession which was capable of execution. While that decree remained in force they had obtained all that they wanted. So long as that decree stood in their favour it was not open to them to institute a fresh suit for attainment of the very object which had been successfully achieved by them. It was under these peculiar circumstances that their Lordships held that the period during which they were litigating for their rights on the previous occasion should be deducted. This case can be explained on the ground that when an effective decree had been obtained by a party which, if executed, would give him all the relief he can claim, time does not run against him but that he would have a fresh start when that decree is reversed. This case also is therefore distinguishable, and the principle underlying it cannot be applied to the converse case where, although the plaintiff was asking for a decree it was not granted to him owing to his own default.
24. In the present case the plaintiffs had claimed pendente lite and future mesne profits in the former suit but none of the Courts passed a decree in their favour for that relief. They cannot invoke the principle of their Lordships' decision, nor can they urge that they ever obtained a decree which made it infructuous for them to institute a fresh suit.
25. The second way in which the learned advocate for the plaintiffs tried to meet the difficulty is by saying that the decision of the High Court has given the plaintiff a fresh cause of action. It is contended that so long as the conditional decree passed by the first Court remained unreversed the plaintiffs were unable to maintain a claim for mesne profits, and that it was only when the High Court held that the plaintiffs were entitled to an unconditional decree for possession that their right to claim mesne profits was established. It is urged that it would have been futile and useless for the plaintiffs to have instituted the suit for mesne profits when they had failed to establish that the defendants were mere trespassers. In support of this, reliance is placed on the observations in the two cases decided by the Calcutta High Court referred to above and the case decided by the Madras High Court. To allow such a contention to prevail would be to permit a suit for mesne profits for any number of years, even exceeding 12 years to be instituted subsequently if the title to the property is the subject of a protracted litigation. In such cases the practice certainly is for the plaintiff to institute a suit for mesne profits before the time expires and let it be stayed pending the disposal of the former litigation. Article 109 of the Limitation Act gives the starting point from the date when the profits are received. We cannot make the limitation start instead from the date of an adjudication of the rights between the parties. The plaintiff's right to recover the mesne profits accrued when the profits to which they were entitled were wrongly received by the defendants. If time once began to run and limitation could not be suspended, the decision by the High Court could not give them a fresh cause of action.
26. It is, however, strongly urged that if the present claim is not barred by the principle of res judicata then inasmuch as this very relief had been asked for in the previous suit, the plaintiffs could not have filed the present suit until the relief asked for in the previous case had been 'not granted.' Some difficulty is undoubtedly created by conceding that the principle of res judicata is inapplicable, But all the same we think that there is no inconsistency in holding that while a second suit is not barred by res judicata, it is barred by limitation. Section 11 of the Code of Civil Procedure and the Limitation Act create distinct and independent bars to the maintenance of a suit, and it may well be that only one bar operates though the other may not. We are therefore of opinion that though for the purposes of this appeal we assume that the second suit is not barred by res judicata we nevertheless hold that the period of limitation was never suspended, that no fresh cause of action had accrued and that the claim for mesne profits for more than three years prior to the suit was barred by time.
27. The appeal is accordingly dismissed with costs.