Alfred Henry Lionel Leach, C.J.
1. In 1926 the respondents filed a suit in the Court of the District Munsif of Kasargod for the recovery of possession of several items of immovable property and for the payment of mesne profits. By a decree dated 2nd December, 1927, the District Munsif dismissed the suit. An appeal was then filed to the Court of the District Judge of South Kanara. The District Judge held that the respondents were entitled to recover possession of one of the items of property. In respect of that item he directed the trial Court to hold an inquiry as to past and future mesne profits and to pass a decree accordingly. The order of the District Judge was on the 6th November, 1930. On the 30lh March, 1934, the respondents applied to the trial Court to ascertain the mesne profits form 31st October, 1925, the date on which the appellant became possessed of the property, to 23rd May, 1932, when he surrendered possession to the respondents in pursuance of the decree of the District Court. The District Munsif held an inquiry and found that there was due to the respondents Rs. 1,173-4-7, which he directed the appellant to pay to them. The appellant filed an appeal before the District Judge and urged that the application was barred under Article 181 of Schedule II of Indian Limitation Act. The District Judge rejected the contention raised by the appellant that the application was barred by the law of Limitation. The contention was that, inasmuch as more than three years had elapsed between the date of the District Court's decree and the date of the filing of the application, Article 181 of the Limitation Act applied. The District Munsif's finding on the amount of mesne profits was confirmed and the appeal dismissed. This second appeal is the result and it has been placed before this Full Bench as there is a conflict of authority.
2. Order 20, Rule 12 as it appears in the Code of Civil Procedure reads as follows:
(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the dccree, whichever event first occurs.
(2) Where an inquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
3. In 1911 this Court added to Rule 12 a third sub-rule which is in these terms:-
Where an appellate Court directs such an inquiry, 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.
4. It is said that as the result of the addition of Sub-rule (3) it is now obligatory on a decree-holder to file an application asking for an inquiry into mesne profits and for the passing of a final decree, and that Article 181 of the Limitation Act requires such an application to be made within three years of the preliminary decree.
5. In Timmaraju v. Narasimharaju (1927) 54 M.L.J. 665, Jackson and Srinivasa Aiyangar, JJ., expressed divergent opinions on this question. The facts there were these : A decree for possession with mesne profits was passed on 3rd February, 1919, by an appellate Court. On the 30th November, 1921, the plaintiff applied to the trial Court for an order determining the mesne profits. He paid batta, but service of the notice was not effected, and, on his failure to pay additional batta, the application was dismissed. On the 6th December, 1922, more than three years after the date of the appellate Court's decree, he applied again for an inquiry into the question of the amount of the mesne profits. Jackson, J., was of the opinion that the application of the 6th December, 1922, was an application within the scope of Article 181 of the Limitation Act and having been filed three years after the decree, was time barred but he considered that the plaintiff could rely on his application of 30th November, 1921, oh the ground that the Court should not have dismissed that application unless in doing so it expressly stated that it was acting in accordance with the inherent powers reserved by Section 151 of the Code of Civil Procedure. Srinivasa Aiyangar, J., agreed that the application was not barred by the law of limitation, but based his decision on firmer ground, namely, that the suit must be regarded as pending until a final decree was passed. He considered that the rule-making authority intended by adding Sub-rule (3) to Rule 12 that the inquiry should always be ordered on the application of the decree-holder for the ascertainment of mesne profits, but he was not satisfied that the language of the Sub-rule was sufficiently apt for that purpose. In other words as the rule stood an application could be made for the ascertainment of mesne profits at any time before the passing of the final decree because the suit was pending until a final decree was passed.
6. In Rama Rao v. Sreeramamurthi : AIR1936Mad801 , Beasley, C.J. and Stodart, J., accepted the opinion expressed by Jackson, J., in Timmaraju v. Narasimharaju (1927) 54 M.L.J. 665, that where an application is filed for the ascertainment of mesne profits it falls within Article 181 of the Limitation Act. Beasley, C.J. and Stodart, J., delivered separate judgments, and although in the judgment of the learned Chief Justice no reference is made to the question, inasmuch as in his judgment Stodart, J., said, 'We are clearly of the opinion that Article 181 applies' it must be taken that the learned Chief Justice concurred in the decision of Stodart, J., on the point.
7. In the course of the arguments in the present case the Court has been informed that no other High Court has made the addition which this Court has made to Rule 12. The High Courts Which have considered the question of the wording of Rule 12 as it stands in the Code have decided that the rule does not contemplate an application being made for the ascertainment of mesne profits and if an application is made it is not an application governed by Article 181 as it cannot be regarded as an application in execution, but as a part of the suit itself. See Harakhpan Missir v. Jagdeo Missir I.L.R. (1924) 4 Pat. 57, Bhatu Ram Modi v. Fogal Ram I.L.R.(1925) 8 Pat. 482, Kumar Kamakhya Narayan Singh v. Akloo Singh I.L.R.(1928) 8 Pat. 482, Shankar Appaji v. Gangaram Bapuji I.L.R.(1928) 52 Bom. 360 and Narain Das v. Bhagwati Prasad (1933) 32 All. L.J 86. It has not been suggested that these decisions have misconstrued Rule 12 as it stands in the Code, nor could it with reason he suggested. Rule 12 unamended provides that where an order is passed directing an inquiry as to mesne profits a final decree shall be passed in accordance with the result of such inquiry. The fact that the decree-holder thinks it advisable to move the Court to commence the inquiry does not mean that he is making an application within the purview of Article 181. Whenever he moves the Court, the Court is bound by the rule to inquire and grant the decree-holder a final decree. In such circumstances the application is merely in the nature of a remainder of what is still to be done.
8. Now does the addition of Sub-rule (3) make any difference? For the appellant it is said that the words 'in every case the Court of First Instance shall, on the application of the decree-holder, inquire and pass a final decree' have the effect of making an application necessary even where there has been no appeal. This direction obviously cannot apply in a case where the appellate Court has decided to conduct the inquiry itself. Sub-rule (3) does not say that the appellate Court shall remand the case to the trial Court; it says that it may do so. It may very well be that the appellate Court considers that the inquiry should take place under its own immediate supervision and if it does so obviously an application to the Court of First Instance for an inquiry and the passing of a final decree will not lie. The words and in every case the Court of First Instance shall, on the application of the decree-holder, inquire and pass a final decree' must necessarily be subject to this limitation, irrespective of any other limitation.
9. I cannot be persuaded to think that in adding this clause the rule-making authority had in mind an application falling within Article 181. In the first place, it would be contrary to the provisions of sub-rule (2). In the second place, it would put the litigant who is successful in the appellate Court in a worse position than a successful litigant in the Court of First Instance. Srinivasa Aiyangar, J., in Timmaraju v. Narasimharaju (1927) 54 M.L.J. 665 thought that the rule-making authority had in mind an application to which Article 181 applied, though as the result of the use of inappropriate words it had not carried its intention into effect. The intention must be gathered from the words used, and reading Rule 12 as it stands amended it seems to me that the intention was to obviate the necessity of the decree-holder having to move the appellate Court to pass a final decree after an inquiry into mesne profits made by the Court of First Instance at the direction of the appellate Court. Certainly sub-rule (3) might have been more happily expressed, but 1 am not prepared to read the word 'application' as meaning an application falling within Article 181. Before the addition to the rule was made a person who obtained a preliminary decree, whether in the trial Court or on appeal, had the right to a final decree on mesne profits being ascertained, irrespective of time. To take away a right the words used for the purpose must leave no doubt as to the intention. That is certainly not the case here, and I consider that the word 'application' in Sub-rule (3) should be read as meaning a motion entirely free from the mischief of Article 181.
10. On an appellate Court directing a Court of First Instance to make an inquiry into mesne profits the proper course for the Court of First Instance to adopt on receipt of the record from the appellate Court is to fix a date for the appearance of the parties. If the decree-holder does not appear the Court of First Instance has no right to pass a final decree depriving him of the mesne profits awarded by the appellate decree, but should adjourn the matter sine die, a course which the Privy Council approved of in Lachmi Narain Marwari v. Balmakund Marwari (1924) 47 M.L.J. 441 : L.R. 51 IndAp 321 : I.L.R. 4 Pat. 61 In that case the Patna High Court on appeal made an order for a partition upon certain terms and remitted the case to the Court below for disposal under the decree. The plaintiff did not appear on the date fixed by the Subordinate Judge and the suit was dismissed. Their Lordships pointed out that the plaintiff was put into an intolerable position, not being able to go on with his suit and yet not in a position to bring a fresh suit. Their Lordships were fully sensible of the necessity of leaving Judges in India with ample power of discipline, and means to check neglect and delay, but they said that a proper order in a case like the one before them would be an order adjourning the proceedings sine die with liberty to the plaintiff to restore the suit to the list on payment of all costs and court-fees (if any) thrown away. I do not read Sub-rule (3) as an attempt to place a suit in which there has been a decree for possession with mesne profits to be ascertained on a different basis. At the same time I consider that the attention of the Rule Committee should be called to Sub-rule (3) with a view to its being framed in a manner which will leave no scope for any misunderstanding.
11. The appeal fails and is dismissed with costs.