1. The plaintiffs filed a suit against defendant 1 for recovery of possession of certain property and for mesne profits. During the pendency of the suit they tiled a petition for the appointment of a receiver to harvest the crops on the land. Respondents 7 and 8 gave security to the extent of a maximum of Rs. 550 with regard to these crops. The suit was dismissed but in appeal was decreed. The petitioner (appellant) put in a petition to execute the security bond. The sureties contended: (1) that the bond was only intended to cover any decree that might be passed by the trial Court; (2) that even if it is operative the appellate decree is not capable of execution. The Court of first instance found both points in the petititioner's favour. The lower appellate Court found both points against the petitioner and he prefers this second appeal.
2. Point No. 1. - The material portion of the security bond runs as follows:
On the petition presented by the plaintiff in this suit for the appointment of a receiver the Court passed order on 16th January 1921 directing the defendants to furnish security for RS. 550 in respect of the mesne profits of the plots in dispute for the current year. If in accordance therewith decree is passed in this suit in favour of the plaintiffs and the defendants have to pay mesne profits for the current year the defendants shall pay that amount to the plaintiffs; then follows the charge
3. Subbarama Ayyar v. Subbier : AIR1925Mad114 is directly in point that such a bond becomes vacated on the suit being dismissed by the trial Court. The samel view has also been taken in Manackjee v. B.M.L. Chettiar Firm AIR 1927 Rang though the Bombay High Court appears to take a different view in Irangauda Shidram Gowda v. Irbasappa : AIR1927Bom84 . The Privy Council case in Baj Baghubar Singh v. Jai Indra Bahadur Singh AIR 1919 PC 55 was considered in Subbarama Ayyar v. Subbier : AIR1925Mad114 , and distinguished on the terms of the actual bond there. It was also considered in a Full Bench case of this Court in Balaraja Ghettiar v. Masilamony Pillai AIR 1930 Mad 514 (of 53 Mad.), in which I delivered the judgment. I have nothing to add to the remarks made in Subbarama Iyer v. Subbier : AIR1925Mad114 , or to-those which I made in the Pull Bench case. In an earlier case of this Court reported in O. Venkatasubba Bao v. C. Bosayya AIR 1915 Mad 653, where the terms of the bond were even wider than in the present case, it was held that where sureties offered themselves to the Court of first instance to release property from attachment before judgment and the suit was dismissed, the bond became thereby discharged. This was approved and followed in Subbarama Iyer v. Subbier (1), quoted above. Whether or not Irangauda Shidram Gowda v. Irbasappa (3) can be distinguished from the present case, the view of this Court is clear. I am bound to follow it.
4. If the receiver had taken charge of the property the defendants would have been, on the dismissal of the suit, at liberty to take away the crops unless an order continuing the attachment had been received from the appellate Court. In the Full Bench case referred to above we held that attachment before judgment comes to an end automatically with the dismissal of the suit, even if the Court passes no formal order terminating it. It is difficult to see why the plaintiff should be in a better position merely from the fact that he prefers an appeal. on the first point, therefore, I agrea with the learned District Judge and it is sufficient for the disposal of this appeal. I may, however, perhaps say that I agree with him on the second question also which is somewhat more difficult. In the suit no claim was made for past mesne profits the point being expressly reserved. As regards mesne profits after suit an issue was raised. No. 3, To what mesne profits are the plaintiffs entitled?' The suit in the trial Court went off on the question of the title which was found against plaintiffs. In the appellate Court title was found in their favour but there was no finding about mesne profits The only allusion to it in the judgment is found in the sentence in Ex. D there will be a decree for possession with future mesne profits as prayed for with costs in both Courts.
5. The plaint no doubt had prayed for future mesne profits, and for the appellants, great stress is laid on the words in the judgment 'as prayed for.' It is also argued that the executing Court cannot go behind the decree ; that is of course true but it is alleged that if the decree is not executable the executing Court cannot help going into that question. We are here only concerned as to how far the decree is in its present state executable against the securities It is quite clear that the mesne profits asked for have never been determined though there was an express issue as to their quantum in the suit. The liability of the sureties depends on what these mesne profits turn out to be and it is difficult to see how it can be enforced till this is known. The execution of the decree in its present state against them seems at least premature. I am, therefore, inclined to agree with the view of the learned District Judge on this point also, but the appeal must fail on the first point in any case. It i3 dismissed with costs.