Sundaram Chettiar, J.
1. This second appeal arises out of a suit brought by the plaintiff-appellant, for the recovery of a certain sum of money on account of mesne profits for Faslies 1328 and 1329 either from defendants Nos. 1 and 2 or from defendants Nos. 3 and 4. In the first Court, the plaintiff got a decree for a lesser amount and he preferred an appeal and the other side put in a memorandum of objections. The lower Appellate Court in dismissing the appeal and allowing the memorandum of objections dismissed the plaintiff's suit on a preliminary ground that it is unsustainable.
2. In the written statement filed by defend-ants Nos. 1 and 2 they took an objection that this suit was barred under Section 47, Civil Procedure Code, but no issue was framed on that point. In the lower Appellate Court, that question was however considered. The real position in this case is this. In the former suit between the same parties, the present plaintiff sued for the especially performance of a contract of sale by the execution of a sale-deed in his favour by defendants Nos. 1 and 2 and for recovery of possession of the property after ejecting defendants Nos. 3 and 4 therefrom and also for the recovery of Rs. 50 as damages (vide Ex. A,) It appears from this that there was no specific prayer in that plaint for the awarding of future mesne profits. However the Court which decided that suit gave a direction in the decree that subsequent mesne profits should be ascertained and embodied in a final decree. Without making an application to that Court in that suit as required by Sub-rule (3) of Rule 12 of Order XX, Civil Procedure Code for an enquiry into mesne profits, the plaintiff has filed the present suit for the recovery of the same. It is perfectly clear that an application under Order XX. Rule 12 for the aforesaid purpose is not an application in execution attracting the provision of Section 47, Civil Procedure Code. This is not a matter that must be decided under Section 47 Civil Procedure Code, and, therefore, that section is clearly no bar to the maintainability of the present suit.
3. We have next to see whether under the Code there is any other bar to the maintainability of this suit. The only section which seems to be applicable to a case of this kind is Section 10, Civil Procedure Code. That section enacts that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. We have to see whether the issue arising in the present suit was also directly and substantially in issue in the former suit. As observed already, in the former suit there was not even a prayer in the plaint for the award of future mesne profits and consequently there could have been no allegation in the written statement traversing the right of the plaintiff in respect of future mesne profits. But, however, the Court under the wide discretion vested in it by Rule 12, Order XX, Civil Procedure Code, chose to give a direction in the preliminary decree for the ascertainment of future profits and for the passing of a final decree after such ascertainment. It is admitted that till now the plaintiff has not put in any application in the former suit asking the Court to make an enquiry and ascertain the profits. That being so, it seems to me extremely doubtful whether the matter now in issue in the present suit can be deemed to have been a matter directly and substantially in issue in the former suit. According to Rule 1, Order XIV, Civil Procedure Code, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. If regard be had to this section, it cannot be said that till after the filing of the application aforesaid, in the former suit, the question in issue in the present suit has also become a matter in issue in the former suit. We are now at a stage when it cannot be said that this matter has also been the matter in issue in the former suit. The mere fact that there is a provision in the decree for the ascertainment of mesne profits cannot be deemed to be a bar to the present suit, unless a specific bar is shown to exist under Section 10 of the Code or under any other provision contained in it. If Section 10 cannot be applied to this case, there is no-other provision in the Code precluding the plaintiff from filling this suit.
4. The suit being maintainable, it is unnecessary to go into the other question whether this suit can now be allowed to be converted into an application and, if so, whether such an application would be within time or not. I am of opinion that the decision of the lower Appellate Court on this preliminary point is wrong. The decree of the lower Appellate Court is set aside and the appeal is remanded to that Court for disposal on the merits. The parties in this second appeal will bear their respective costs and the other costs will abide the result of the appeal in the lower Appellate Court.
5. Court-fee paid on the memorandum of appeal will be refunded to the appellant.