Sadasiva Aiyar, J.
1. The 23rd defendant is the appellant before us. The purchaser from the 1st plff. who was entitled to and given a decree for 1/6th share in certain proper-ties prayed under Order 20, Rule 2 to have the mesne profits due to the petitioner by the 23rd defendant ascertained, the decree in the suit having, as I read it, declared the 1st plaintiffs' right to recover mesne profits from the date of suit against the 23rd defendant and having only left the actual amount to be ascertained and awarded in a supplemental decree. I do not agree with the contention of the appellant's learned vakil that the sale deed to the petitioner by the 1st plaintiff did not transfer the 1st plaintiff's rights under the decree but transferred merely a right to claim mesne profits.
2. The only remaining contention which has to be considered is whether when a decree declaring such a right has been passed in favour of a litigant against another litigant, whether such a right can be transferred lawfully and whether the transferee is entitled to have the mesne profits due to his transferor ascertained by the ordinary procedure in the same suit in the ordinary course. Reliance is placed by the appellant's learned vakil on the decisions beginning with Shyam Chand Koondoo v. The Land Mortgage Bank of India I.L.R. (1833) Cal. 695 (See also Seetamma v. Venkataramanayya I.L.R. (1913) M. 308 and Muthu Hengsu v. Netravalh Naiksavi 1920 12 L.W. 44 in which it has been held that a claim for mesne profits is a claim for damages in tort which falls under the heading of 'mere right to sue' in Section 6(e) of the Transfer of Property Act and hence cannot be assigned. I am inclined to hold that those decisions are the result of what I considered with the greatest respect to be an unnecessarily close adherence to the development of the law of torts in English Courts. I think a suit for mesne profits (as pointed out by my learned brother during the course of the argument) partakes more of the nature of a suit for account (along with which it is also enumerated in the schedule to the Provincial Small Cause Court's Act). I think also that such a suit has under ordinary circumstances some affinity to a suit for money had and received and I see no reason why in India where according to the Privy Council the law of champerty and maintenance as developed in England has very little application the transfer of a right to claim mesne profits should be held invalid. I think the reasoning in Ramiah v. Rukmani Ammal (1912) 24 M.L.J. 313 rather points to the conclusion that the transfer of such a right is not invalid. It is however unnecessary to express a final opinion on the question whether a claim for mesne profits which has not been declared, to exist in the transferor by a decree of court can be validly transferred or not. Where, however, such a claim has been declared by a decree and if only the exact amount recoverable has been left to be ascertained in future proceedings in the same suit, I think there can be no difficulty in holding that the transfer of such a right is valid, and I find that in Prasanno Kumar Panja v. Ashutosh Ray (1913) 18 C.W.N. 450 and Hariprasad Misser v. Kodo Marya (1916) 1 Pat. L.J. 427 the validity of the transfer of such a right has been upheld. Following those decisions, I would dismiss this appeal with costs.
Seshagiri Aiyar, J.
3. I agree. The question for decision is whether after a preliminary decree which directs enquiry into the mesne profits and after a declaration has been inserted in the final decree regarding the rights of the parties, such a decree can be assigned to a stranger to enable him to execute it against one of the parties to the decree. My learned brother has said that the technicalities of the English Law should not be imported into this country. I take a different view. My complaint is not that we too slavishly follow English Law, but that we have, not kept pace with the development of that law during the last few years. I may refer to one of the recent decisions, namely, Ellis v. Torrington (1920) 1 K. B. 399 where the exact import of the expression 'a bare right to sue' has been well pointed out. Scrutton, L.J. at page 411 says thus : 'But early in the development of the law the courts of equity and perhaps the courts of common law also took the view that where the right of action was not a bare right, but was incident or subsidiary to a right in property, an assignment of the right of action was permissible and did not savour of champerty or maintenance.' Bankes, L.J. takes even a stronger view and says that where a right to profits is appurtenant to the right to property it can be assigned. Warrington. L.J. expresses himself similarly. The interpretation here given should govern courts in India in construing Section 6 of the Transfer of Property Act. Applying that principle, there can be no doubt that the right to sue for mesne profits assigned in this case is appurtenant to the right of enjoyment of the property itself and therefore that right was an enforce-able right. Reference may also be made to one other English case, Hambleton v. Brown (1917) 2 K. B. 93, where it was held that after a decree there can be assignment of the rights litigated. There-fore if the English law were properly applied in this country there can be no doubt that this case can be decided only in one way, and that is against the appellant.
4. As regards the cases quoted I wish to say a word. In my opinion while Ramiah v. Rukmani Ammal (1912) 24 M.L.J. 313 is quite in consonance with the view taken in England, the decisions in Seetamma v. Venkataramanayya (I.L.R.1913) M. 308 as well as the decision to which I was a party viz., Muthu Hengsu v. Netravathi Naiksav (1912) 12 L.W. 44 do not seem to have recognised the distinction between a bare right to sue and a right which becomes only subsidiary to the enjoyment of the property itself. I was under the impression that in the case to which I was a party there was an assignment of the mortgage right, and the question was whether after the assignment of the mortgage by virtue of Section 8 of the Transfer of Property Act, the transferee-can claim mesne profits which had accrued due before the date of the transfer. If that was the question the decision will be alright. But my learned brother has drawn my attention to the fact that in that case there was an actual transfer of the right to mesne profits. Apparently that fact was not brought to our notice at the hearing. If the decision to which I was a party is to be understood as laying down that even in cases of actual transfer of mesne profits as subsidiary to the enjoyment of the property the right cannot be enforced, I am not prepared to stand by it. So far as the present case is concerned, the matter, seems to be very clear. Applying Section 6 as strictly as possible, the present right cannot be said to be in any way a bare right to sue. The suit had been instituted and the cause of action had become merged in the decree of the court. Consequently it was no longer a bare right the transfer of which is forbidden by Section 6 Clause (e).
5. The view taken in Prasanno Kumar Panja v. Ashutosh Ray (1913) 18 C. W. N. 450 and Hari Prasad Misser v. Kodo Marya (1916) 1 Pat. L.J. 427 is quiteconsistent with the strictest enforcement of Section 6 of the Transfer of Properly Act, and I respectfully follow them. I agree with my learned brother in holding that the appeal should be dismissed with costs.