Horace Owen Compton Beasley, Kt., C.J.
1. The preliminary objection as regards the orders in these cases made in the lower Court being appealable must be overruled.
2. One of the orders in question is an order disallowing a plea that the execution petition was barred by limitation and that order having been made, subsequent proceedings were adjourned until a future date. The other is an order allowing the mortgagee from the original decree-holder in the suit to be brought on as legal representative of the deceased widow cf the original decree-holder and to continue the execution.
3. A number of cases have been put before us but it is only necessary to refer to three of them. One is Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 L.R. 48 : I.A. 45 a decision of the Privy Council and another is Shiva Narayan Lal v. Narayan Prasad : AIR1924Pat683 . The latter case holds the view that an order dismissing a plea of limitation as regards an execution petition in execution proceedings is an appealable decree under Section 47 Civil Procedure Code; and that decision-is directly in point. I think also that the Privy Council decision in Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 L.R. 48 : I.A. 45 just referred to must be taken to be in point as well although it is pointed out by Mr. Raghava Rao, that the order in question there was a final order in that it closed that execution petition. I think, however that the Privy Council decision must be taken to be that whenever a plea of limitation is raised in execution petitions and there is a finding thereon, the order is an appealable 'decree'. Obviously, if the plea is allowed, it must be an appealable order : and similarly, if it is rejected, in the view of the Privy Council, it is an appealable 'decree'. If it is an appealable 'decree' it seems to me that it must follow that it is an appealable 'decree' directly it has been pronounced. It is not right under those circumstances to wait until some other order is made in the execution petition. Our attention was drawn to a decision of a Bench to which I was a party and indeed I delivered the judgment - namely Zamindar of Bodinaickanur v. Kamaraja Pandia Naicker : (1933)64MLJ735 . The judgment is a very short one and it does not appear that in the course of the arguments any reference was made to the Privy Council decision in Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 : L.R. 48 IndAp 45 and no reference is made to that decision in the judgment. In view of what I have stated I am driven to the conclusion that that decision was not a correct one and that the correct view of the position is that stated in this judgment following as it does the Privy Council decision and agreeing as it does with the decision in Shiva Narayan Lal v. Narayan Prasad A.I.R. 1923 Pat. 683. The preliminary objection is therefore overruled.
4. I agree with my lord the Chief Justice. The preliminary objection having been overruled, it is now necessary to consider whether the execution petition relating to the outstandings and mesne profits was barred by limitation. The learned Subordinate Judge held that the execution petition was not barred.
5. The history of this matter is as follows : The petitioner in the execution petition is the respondent in these appeals and is the legal representative of the second plaintiff in the suit. That suit was for partition filed by two brothers as plaintiffs against the other coparceners. The two plaintiffs were Balakrishnahayya and Yegnanarayana, the two sons of Rangayya; and the defendants were the descendants of Ramayya, Rangayya's brother. Yegnanarayana was a minor and the first plaintiff acted as his next friend. The suit was referred to arbitration and there was an award dated 15th Mach, 1921 and a judgment and decree in terms of the award dated 29th April, 1921. On 14th September, 1922, there was a release deed by the plaintiffs in respect of the outstandings and in consideration for this the plaintiffs were to receive Rs. 9,000 in the presence of the Registrar. On 27th November, 1921, the first plaintiff gave a receipt for Rs. 2,246-9-0 in respect of mesne profits. Therefore, both the outstandings and the mesne profits were settled between the plaintiffs and the defendants. On 11th April, 1922, the defedants put in a petition for recording satisfaction of the decree as regards mesne profits to the extent of Rs. 2596-9-0 for three faslis 1329 to 1331 stating that that sum had been paid to the plaintiffs towards the decree and there is an endorsement stating that the full amount of mesne profits payable to the plaintiffs in the suit had been paid in full, and four receipts in respect of the payments were attached. After several adjournments on 17th October, 1922, the learned Subordinate Judge made the following order:
Respondent has no objection. (Vide his torn memo). Enter part satisfaction as prayed.
6. The memorandum to which reference is made in Hie order is dated 26th September, 1922, and it states that as regards the outstandings referred to in the release deed, these had been received by the plaintiffs and as regards the mesne profits a sum of Rs. 4,296-9-0 had been received by the plaintiffs in full satisfaction of the claim for mesne profits and there is a prayer that full satisfaction should be recorded in respect of these matters. It is therefore clear - and this is a matter of great importance - that the Court had full knowledge of the fact that the plaintiffs had received from the defendants in full satisfaction of the claim for mesne profits Rs. 4,296-9-0 and with this knowledge made an order recording satisfaction and that similarly the Court had full knowledge of the receipt by the plaintiffs - It must mean the first plaintiff alone, as his brother was a minor - of the outstandings also although no order recording satisfaction was made. What happened after this was that Yegnanarayana became a major on 3rd January, 1923 and on 9th January, 1925, having taken more than two years to think over the matter, filed O, Section No. 4 of 1925 in the Subordinate Judge's Court of Masulipatam seeking to have set aside the award of the arbitrators in the partition suit and the decree in its terms. This suit was dismissed on 28th September, 1927, and an appeal to the High Court against that dismissal (A.S. No. 246 of 1928) was in turn dismissed. On 15th January, 192,8, Yegnarayana died and his widow continued execution proceedings, She died on 31st October, 1931 and the present respondent was brought on record as the legal representative of Balakrishnayya and the order bringing him on record is one of the matters under appeal. That appeal can be dealt with at once by stating that the question sought to be raised here was never argued in the lower Court and we decline to allow it to be argued at this late stage. Before preferring the appeal to the High Court, Yegnanarayana put in an execution petition on 12th December, 1927, E.P. No. 54 of 1927, but owing to his death it was not pressed and his widow put in another petition E.P. No. 55 of 1928. This execution petition comprised several execution applications, E.A. No. 704 of 1928 being one for determining mesne profits and E.A. No. 706 of 1928 to review the order of part satisfaction entered on 17th October 1922. As the decree is dated 29th April, 1921, it is prima facie hopelessly barred. But many points were raised before the learned Subordinate Judge in support of the contention that limitation was saved, all of which were negatived. But the learned Subordinate Judge allowed execution to proceed on the ground that
admittedly mesne profits have not yet been determined by the Court. The first plaintiff purported to receive a lump amount in full satisfaction of that claim. But I have held that his act is not binding on the second plaintiff or his legal representatives and they are entitled to ignore it.
7. Before examining the learned Subordinate Judge's reasons further, it is necessary to deal with the application for review of the order recording satisfaction. The learned Subordinate Judge has held that a petition for review is unnecessary because Order 32, Rule 6 Civil Procedure Code directs that a next friend for the suit shall not without the leave of the Court receive any money and that in this case the first plaintiff Balakrishnayya, the elder brother of the second plaintiff the minor, who was his next friend for the suit, did receive the money outside Court and did not obtain sanction of the Court for doing so. Hence he held that the payment was not a valid one, that the minor on attaining majority could ignore it and that no fresh suit was necessary. He relied on Ganesh Row v. Tuljaram Row (1913) 25 M.L.J. 150 : L.R. 40 IndAp 132 : I.L.R. 36 Mad. 295. That was a case under the old Code, Section 462, which corresponds to the present Order 32, Rule 7. In the course of the judgment it is stated that the powers of a father or managing member are controlled to the same extent as those of the next friend or guardian of a minor are and that he is debarred from doing such acts without the leave of the Court as the next friend or guardian is debarred from doing without the leave of the Court and that to hold otherwise would be to defeat the object of the enactment. In that case, the father had entered into an agreement, he having been appointed also guardian ad litem of the minor, to agree to a compromise without the leave of the Court: and under the compromise decree the money was made payable not to the minor but to the father and although he was admittedly representing the family it was held that it made no difference as it was hi duty to obtain the leave of the Court to any agreement which was clearly intended to affect the rights and interests of the minor. The facts here, however, are very different. Although at the time when the first plaintiff received the money he had not obtained the sanction of the Court for doing so on behalf of the minor and that would have entitled the Court to decline to receive an application for entering up satisfaction and to make an order recording satisfaction, when the Court with full knowledge that the money had been received without the previous sanction of the Court yet received the satisfaction application and ordered satisfaction to be recorded, it must be taken that the Court approved of the receipt by the first plaintiff of the money on behalf of his minor brother. As regards the mesne profits, the Court actually made an order recording satisfaction and, although no such order was made in respect of the outstandings, it is perfectly clear that the Court was aware of the fact that the outstandings had been received by the first plaintiff without its sanction. The Court could have rejected the application to record satisfaction so far as the outstandings were concerned. The Court did not do so. No point was taken that the leave of the Court had not been obtained and under these circumstances we are of the opinion that the minor was not entitled to ignore the satisfaction recorded or to say that that the first plaintiff not having obtained the leave of the Court to receive the outstandings, he is entitled once more to get them from the defendants. The Court having made an order recording satisfaction, the defendants are entitled to the full benefit of that order and can claim a full discharge by reason of it. The learned Subordinate judge, for the reasons stated by him, therefore held that the execution petition was not barred since a portion of the decree amount had still to be ascertained and that no question of limitation could arise until such ascertainment. He then states,
The petition for ascertainment of mesne profits is not one for execution nor is it an application which is required by law to be made as a condition precedent to the ascertainment of the mesne profits. Therefore, there is really no question of limitation at all for such an application.
8. And he relies upon Shankar Appaji v. Gangaram Bapuji I.L.R (1923) 52 Bom. 360. where it was held that the Code does not contemplate an application being made for the ascertainment of mesne profits because where a decree directs that mesne profits be ascertained under Order 20, Rule 12, Clause (i)(c), Civil Procedure Code, it is a proceeding in the suit and it is the duty of the Court to pass a final decree in accordance with the result of the enquiry as Laid down by that order, and therefore even if such an application is made it is not governed by Article 181 of the Indian Limitation Act, 1908. This overlooks the Madras Rule (3) which was added in 1911 and which is as follows:
Where an appellate Court directs such an enquiry, it may direct the Court of first instance to make the inquiry; and in every case the Court of first instance shall, on the application of the decree-holder inquire and pass the final decree.
9. Whatever may be said with regard to the views which other Courts have taken upon this matter, it is quite clear that in Madras an application for the ascertainment of mesne profits has to be made and the learned Subordinate Judge's view that Article 181 of the Limitation Act does not apply is directly contrary to the view expressed by Jackson, J., in Timmaraju v. Narasimharaju : AIR1928Mad522 . There the facts were that the plaintiff sued for possession with mesne profits and the suit was dismissed but the appellate Court granted a decree on the 3rd February, 1919. On the 30th November, 1921, the plaintiff put in an application under Order 20, Rule 12 for the determination of mesne profits. He paid batta, but service of notice was not effected, and on his failure to pay additional batta, the Court dismissed the application, He applied again on 6th December, 1922, more than three years after the date of the appellate decree. Jackson, J., Says that:
The question for determination is whether the plaintiff is not now debarred from having the mesne profits ascertained. There can be no doubt that the application of December 1922 is an application within the scope of Article 181 of the Indian Limitation Act, and, being three years subsequent to the time when the right to apply accrued, it is clearly barred. But the application of November, 1921 was within time and it is not so clear that plaintiff may not even now treat it as effective,
10. That was not a passing observation as the learned Subordinate Judge thinks but one of the matters for consideration in that case. The learned subordinate Judge ought to have felt himself bound by that decision. It is true that in Ramana v. Babu (1912) 24 M.L.J. 96 : I.L.R. 37 Mad. 186
But it is contended that this case must be decided according to the provisions of the present Civil Procedure Code which by Order 20, Rule 12, directs that in a suit for the recovery of immovable property and mesne profits the Court may direct an enquiry as to the mesne profits and should pass a final decree in accordance with the result of the enquiry. The effect of the provision is to make the decree so far as mesne profits are concerned complete only when the amount has been ascertained while not making the rest of the decree incomplete till then. In this view an application for the ascertainment of mesne profits would not be one for execution of the decree, though the question might then arise whether Article 181 would not apply to such an application. We are however of opinion that the question whether the application is one for execution or not should be decided in accordance with the provisions of the repealed Code.... The decree for mesne profits in this case cannot be regarded as incomplete and incapable of execution on the ground that according to the present Code it would be so regarded;
but in Narain Das v. Bhagwati Prasad (1933) 32 A.L.J. 86 strong reliance was placed on Harakhpan Missir v. Jagdeo Missir I.L.R(1925) 4 Pat. 57 in which it was Laid down that Article 181 of the Limitation Act would apply to an application for the ascertainment-of future mesne profits and in support Timmaraju v. Narasimharaju : AIR1928Mad522 was also referred to but it is stated in the judgment that the latter case can be distinguished on the ground that there is in Madras a special rule requiring an application for such a purpose. We are clearly of the opinion that Article 181 applies; and that being so, the execution petition was barred by limitation. Apart from this, there is the fact also that the mesne profits and the outstandings had already been ascertained and therefore nothing remained to be done with regard to the outstandings except to execute the decree and as regards the mesne profits they had also been ascertained and therefore no petition for that ascertainment would lie. C.M.A. Nos. 420 and 427 are dismissed with costs. On C.R.P. No. 1640 of 1933 no orders are necessary. C.M.A. Nos. 102 and 103 of 1934 are allowed with costs. On C.M.P. No. 1214 and 1215 no orders are necessary.