1. The respondent is the Zamindar of Merangi, and the appellants are his paternal uncles. The latter brought a suit against the former in September 1883 for partition of the Zamindari and obtained a decree in December 1885 from the District Court of Ganjam for a half-share in the estate. The Zamindar then appealed to the High Court, but the original decree was confirmed in March 1888. At his instance an appeal to Her Majesty's Privy Council from the decision of the High Court was admitted under Section 603 of the Code of Civil Procedure, and it is still pending. In February 1889 execution of the decree under appeal to the Privy Council was stayed as regards the partition of the zamindari upon security being given by the Zamindar for the appellants' share of two years' mesne profits.
2. The contest in the present suit is as to five years' mesne profits claimed by the appellants from the date of the partition suit. In their plaint in that suit they asked for ten years' past profits and for subsequent profits, and the seventh issue recorded therein by the District Court was in these terms:-' Are the plaintiffs entitled to mesne profits for ten years or for what period? ' The District Court decreed mesne profits for three years prior to the suit, but said nothing in its judgment or decree about the subsequent profits claimed in the plaint. Though the appellants now before us objected to the decree of the District Court so far as it refused them their costs, they did not object to it in so far as it omitted to provide for subsequent mesne profits. On appeal the High Court dealt with the question of costs and said nothing about subsequent mesne profits. In December 1888 the appellants instituted the present suit to recover mesne profits for five years from 1883 to 1888, together with interest thereon, amounting on the whole, to Rs. 61,275 and with costs and subsequent interest. The plaint stated that the District Court ' made no adjudication ' in the partition suit in regard to mesne profits subsequent to the suit, and that the cause of action arose in respect of them on the 14th December 1885 when that Court recognized their right to a half-share and decreed partition and possession of such share.
3. The respondent resisted the claim on four grounds:
(i) that the mesne profits now claimed must be taken as having been refused by the decree in the partition suit within the meaning of Section 13, explanation 3, of the Code of Civil Procedure;
(ii) that in any case, no mesne profits for more than three years prior to the present suit, could be awarded; (iii) that no interest was due thereon;
(iv) that the amounts paid to appellants and Ors. for their maintenance during the five years mentioned in the plaint should be set off against the amounts claimed.
4. Thereupon the Judge recorded the following issues for determination:
(i) Is it a fact that in the first suit the plaintiffs asked for profits that might accrue subsequent to the institution of that suit? Was that claim refused or not granted? If so, does that estop plaintiffs from now claiming them?
(ii) ' Is so much of the claim as relates to faslis 1293, 1294 and 1295 barred by limitation
(iii) ' Are plaintiffs entitled to interest on arrears?
(iv) ' What amounts have been paid to plaintiffs from estate funds in these five years?
5. On the first issue the District Judge found that the claim to subsequent mesne profits was substantially and directly in issue in the partition suit; that it was not granted, and, therefore, refused; and that the present suit was barred. On the second issue, he held that Article 109 of the second schedule of the Limitation Act governed the case, and that, if the appellants were entitled to mesne profits at all, they would be entitled to such profits only for three years before the suit. As regards the third issue, he was of opinion that reasonable interest should be allowed on arrears of mesne profits. As to the fourth issue, he did not consider it necessary to decide it and in the result, he dismissed the appellants' suit with costs on the ground that it was barred by Section 13, explanation 3. Hence this appeal.
6. The question which we have to determine is whether the appellants' claim must be taken to have been disallowed under explanation 3, Section 13, Code of Civil Procedure, and, if so, to what extent. A second suit is clearly barred by Section 13 in respect of any matter directly and substantially in issue between the same parties and heard and finally decided in a previous suit by a Court of competent jurisdiction. Explanation 3 states that any relief claimed in the plaint, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. The plaint in the partition suit prayed for a decree for subsequent profits as part of the relief to which the appellants were entitled by virtue of their right to insist on the partition of the zamindari. It was competent to the District Court under Section 211, Code of Civil Procedure, to have provided in its decree in the former suit for payment of mesne profits from the institution of that suit until partition and delivery of possession to appellants of their half-share. But in fact the decree in the partition suit did admittedly not grant subsequent profits though we are not in a position to say for what reason. It is clear that if subsequent mesne profits were expressly refused by that decree, the claim in respect of them up to date of that decree, would clearly be res judicata, the parties and the title under which the claim is made being the same in both suits. The legal effect then of explanation 3 is that of treating the omission to grant the relief asked for in the plaint as equivalent to an express refusal and the claim thereto in a fresh suit as res judicata. The obvious intention is to prevent parties who once submit their claim for subsequent profits to adjudication in a suit for possession of immoveable property based on title, from harrassing their opponents with a second suit in respect of the same claim. If the District Court failed to adjudicate upon it, the appellants' remedy lay in rectifying the error by appeal but not in relying on it as the basis of a second suit. It is then said that the cause of action as to subsequent mesne profits had not arisen at the date of the previous suit, and that the appellants were not bound to insist upon an adjudication thereon. It may be that they were not bound to claim an adjudication in their plaint, and the last clause of Section 244 lends support to that view, but when they once elect to claim an adjudication under Section 211, and by such election make it part of the subject-matter of the suit, they must either withdraw the claim with the express permission of the Court to institute a fresh suit, or be bound by the result of that suit.
7. As regards the last clause in Section 244, it can only bear the construction that that section does not of itself bar a fresh suit, but not that it contracts or does away either with Section 13 or with explanation 3 which is part of that section. The learned Advocate-General drew our attention at the hearing to the order of this Court staying execution of the decree so far as it relates to partition of the zamindari pending the decision of the appeal to Her Majesty's Privy Council on condition that the Zamindar furnished security for two years' mesne profits, and argued that it implied a recognition of the appellants' title to subsequent profits. But the order in question was made under Section 608 of the Code of Civil Procedure, and it has no reference to the period for which mesne profits are now claimed. The principle on which it rests is that under the decree appealed against, the appellants are entitled to immediate execution and possession, and if the Court interferes with the exercise of their legal right from sufficient cause until the decision of the appeal, it will only do so after seeing that by its action, they are not likely to be damnified if the appeal happens to fail. Neither the language of Section 608 nor the principle underlying it has a bearing on the claim now before us. At the hearing, the learned Advocate-General laid stress on the fact that the seventh issue in the partition suit related only to past profits, and that there was no issue as to subsequent profits. The words in explanation 3, Section 13, are, however, 'Any relief claimed in the plaint,' and it is immaterial whether there was a specific issue or not, inasmuch as it is competent to the Court to direct an inquiry regarding subsequent profits in execution. The decision of the Judge is, therefore, right, so far as it treats the decree in the partition suit on a construction of explanation 3, Section 13, as if it expressly refused subsequent mesne profits.
8. The further question then arises whether Section 13 affects the claim to mesne profits which accrued due from and after the date of decree in the partition suit. The point for consideration is whether the mesne profits constructively disallowed were those which had accrued up to date of decree, or include also mesne profits which thereafter accrued before actual partition and transfer of possession in execution of the decree.
9. The material portion of the original decree in the partition suit is in these terms--' It is ordered that the Zamindari of Merangi and other property mentioned in the plaint schedule be divided into four shares, of which one share be given to each of the plaintiffs, together with mesne profits for three years amounting to Rs. 14,250 on account of the share of each of the plaintiffs.' The plaint in that suit prayed for a decree for dividing the zamindari and other property, and giving the plaintiffs their share of four shares, for payment of Rs. 95,000 as the amount of mesne profits for ten years from 1873, and for 'subsequent profits,' and costs with interest. Insert in the decree, with reference to Section 13, explanation 3, the words 'subsequent profits are refused' and the question is what is the construction to be placed on the decree as to the period for which mesne profits were refused? Was it the intention to refuse subsequent profits up to date of decree or for all time to come until partition is effected and separate possession is awarded of the appellants' moiety? In ascertaining the intention two things have to be kept in view, viz., (1) the terms of the latter portion of the decree, so that the words inserted with reference to explanation 3 may fit into it, and (2) the provisions of Section 211 as to the extent to which subsequent profits accruing after suit may be claimed and adjudged.
10. As regards the construction of the decree, we are of opinion that it would be a contradiction in terms to say ' We decree to you immediate partition and possession, but we take away from you the remedy which you may have for obtaining the fruits of such possession.' Again, the withholding of possession after decree was wrongful on the part of the respondent and the construction suggested for him would enable him to gain by his own wrong. Turning to Section 211, Civil Procedure Code, it cannot, we think, be maintained that the section is to be taken to be conclusive as to the object-matter of a plea of res judicata founded on explanation 3, Section 13, of the Code of Civil Procedure. The section is in our opinion only an enabling section and it would be neither unreasonable nor illegal to refuse subsequent profits up to date of decree and decree immediate possession, leaving the party in whose favour the decree is made to his remedy by a regular suit if immediate possession is not had. We are therefore of opinion that the claim is barred by Section 13 only so far as it relates to mesne profits up to date of the decree in the partition suit, viz., 14th December 1885.
11. As regards the second issue we agree with the Judge that the claim for mesne profits for more than three years before suit is barred by limitation. As observed by him, Article 109 clearly governs the case, and the learned Advocate-General did not press upon us the seventh ground of appeal.
12. As to the third issue, we also think that the appellants are entitled to interest on arrears of mesne profits, the claim being reasonable and consistent with Section 211, Code of Civil Procedure, explanation. The Judge should, however, he requested to state what he considers to be the reasonable rate at which interest may be allowed.
13. The Judge has not recorded a finding on the fourth issue, nor has he taken an account as to the amount of mesne profits actually realized by the respondent.
14. We shall therefore ask the Judge to take an account of mesne profits which accrued during the three years before suit or from 7th December 1888 and of the sums which ought to be deducted from it, and ascertain the half-share payable to the appellants and the interest to be awarded upon it. The finding will be submitted to this Court within six weeks from the date of the receipt of the order by the Lower Court, when seven days after the posting of the finding in this Court will be allowed for filing objections.