Chandrasekhara Aiyar, J.
1. Original Suit No. 204 of 1929 was a suit to recover possession of a site from defendants 1 to 3, to have a street restored, and for the payment of a sum of Rs. 50 as damages for the year 1928. The plaint was presented on 13th July, 1929. There was a decree in favour of the plaintiffs on 17th August, 1931, directing defendants 1 to 3 to remove the enclosure around the site that they had put up and to put the plaintiffs in possession of it so that it might be available for communal user of the plaintiffs and the defendants; the street was to be restored to its original condition, and defendants 1 to 3 were directed to pay the plaintiffs Rs. 30 as damages for the year 1928. There was no claim for mesne profits subsequent to 1928 and the decree awarded none. The decree-holders applied to the District Munsiff in I.A. No. 221 of 1943 for the ascertainment of future mesne profits under Order 20, Rule 12, Civil Procedure Code and for a decree for the amount that may be ascertained. They were resisted by the first defendant, one of the three judgment-debtors, who pleaded that the liability had become discharged by reason of Section 10, Clause (2) of the Madras Debt Conciliation Act, 1936, (a) as he applied for a settlement of his dpbts and the decree-holders did not file any statement setting out this debt arising in connection with future mesne profits and (b) that the application under Order 20, Rule 12, Civil Procedure Code, was misconceived, as the decree did not award any future mesne profits nor direct any enquiry in this connection.
2. The District Munsiff dismissed the petition, accepting the first contention but rejecting the second. On appeal, the Subordinate Judge held that the petition under Order 20, Rule 12, Civil Procedure Code, was maintainable but that the liability for future mesne profits could not be described as a 'debt' within the meaning of the Madras Debt Conciliation Act to be wiped out or discharged by reason of the omission of the creditor to file a statement, as contemplated under Section 10, Clause (1) of the Act. He pointed out further that, as regards the liability for mesne profits of defendants 2 and 3, there could be no question of its being wiped out, as they did not go before the Debt Conciliation Board, and that the petition was, in any event, wrongly dismissed so far as they were concerned. He reminded the petition to the lower Court for fresh disposal. It is against this order of remand that this miscellaneous appeal has been filed.
3. It is fairly clear that the liability for future mesne profits, not adjudicated upon by any decision of a Court and the amount being unascertained, cannot well be described as a 'debt' within the meaning of the, Act. It would really be doing violence to the ordinary meaning of the word to give it this wide and all embracing interpretation. The definition of the word given in the Act does not warrant it. A mature debt, as distinguished from an immature debt, refers to a sum of money that is payable immediately as contrasted with a sum that is due but the payment of which is postponed.
4. It is equally clear that the liability for mesne profits of defendants 2 and 3 cannot be said to be wiped out by anything that the first defendant did and the decree-holders omitted to do vis-a-vis the first defendant's act. The argument is plausible that, by reason of the failure of the decree-holders to file a statement, the first defendant's debt has been wiped off. To say that the joint and several liability of defendants 2 and 3 is also wiped out is to confer on the debtor a protection which would never have been intended by the framers of the Act.
5. But on the first point, I think the appellant is on firm ground. The District Munsiff held that the petition was maintainable because the Madras amendment to Order 20, Rule 12, Civil Procedure Code, introducing Clause (3) was comprehensive. The Subordinate Judge took the same view on the strength of the decision in Muthayya Kone v. Rakappan Ambalam (1935) 7o M.L.J. 87. In my view, they were both wrong. The Madras amendment, as it was introduced in 1911 and as it was further amended in 1941, merely provides for the procedure to be adopted in ascertaining the mesne profits. It does not say that, when there was no claim for future mesne profits in the suit and the decree therefore did not award any, still the Court can, on an application, proceed to ascertain such mesne profits and pass a final decree. For a final decree there must be a preliminary decree, and the preliminary decree must say something which the final decree is to carry into effect. Where the preliminary decree awards no future mesne profits, there can be no final decree awarding the same. The amendment introduced to prescribe the procedure to be adopted in such cases,-whether the enquiry was to be held by the appellate Court itself of was to be held by the first Court and whether the enquiry was to be on the application of the decree-holder or otherwise,-has nothing whatever to do with the question whether any relief could be granted later by a Court in a suit, which has fructified into a decree and which does not award such relief. The trouble about the amendment was quite different. When, as it originally stood, it spoke of an application by the decree-holder, the question arose whether Article 181 of the Limitation Act applied. In Ramasubramanya Pattar v. Karimbil Pati : AIR1940Mad124 , it was held that the Article was inapplicable and that the word 'application' referred to in Sub-rule (3) could not be held, having regard to the intention of those who framed the rule, to mean an application falling within Article 181. It was in this decision that it was suggested that Sub-rule (3) should be amended Suitably to make it quite clear that the mischief of Article 181 should not apply, and it was in pursuance of this suggestion that the rule has been further amended and stands, as it does now, with the word 'application' taken out and the words 'shall whenever moved to do so by the decree-holder' substituted.
6. Muthayya Kone v. Rakappan Ambalam (1935) 70 M.L.J. 87 has no application at all. The question whether there can be a claim for subsequent mesne profits not awarded in a prior suit arose in a later suit filed for such subsequent profits and the defendant contended that, as he had deposited in Court some money which he was called upon to deposit for obtaining a stay order and as he had stated in his written statement in one of the previous suits that the plaintiff was at liberty to take possession of the lands, he was not liable for subsequent mesne profits. It was in this connection that Varadachariar, J., pointed out:
It is immaterial that in the present case there was no direction in the decree itself for future mesne profits. These provisions indicate the primary liability of the defendant for possession of the immovable property.
He does not lay down that, where there is no claim for future mesne profits in a suit and where the decree does not award any future mesne profits, the Court can, either of its own accord, or moved to do so by the decree-holder, declare in that suit liability for future mesne profits and ascertain the amount. The Court has no jurisdiction to do so and Clauses (1) and (2) of Order 20, Rule 12, Civil Procedure Code, are quite clear on the subject. The decree must direct the enquiry. Formerly, the question of mesne profits was relegated to the stage of execution. Now it has to be done in the suit itself. Even in a case where relief is claimed but the decree is silent, the relief must be deemed to have been refused. Here we have a case where there was no claim put forward at all for future mesne profits. It is a matter for some surprise that two Courts should have held that still an application under Order 20, Rule 12, Civil Procedure Code, would lie.
7. As I hold that the petition was not maintainable, the order will be that it will stand dismissed with costs right through.
8. No leave.