1. The preliminary decree which was for the possession of immoveable property awarded mesne profits subsequent to suit and the plaintiff applied under Order 20, Rule 12 of the Code of Civil Procedure for ascertainment of those profits. The learned Subordinate Judge made an order in the plaintiff's favour and the defendants have filed the Civil Be vision Petition assailing this order.
2. The defendants object that the plaintiff was precluded from making the application in question by reason of the fact that he made previous applications in order to get the same relief and those applications were rejected. The material facts with reference to which this contention is advanced are these. The plaintiff filed an execution petition and be sought to execute the decree, so far as it was capable of execution, but he in addition prayed for ascertainment of mesne profits under the erroneous impression that profits were to be ascertained in execution. As the execution petition was not accompanied by a copy of the decree, time was granted for its production and as the copy was not produced within the time granted, the petition was rejected. The plaintiff again applied in execution for ascertainment of profits and this application was not pressed and was dismissed. This was followed by another execution petition which again included a prayer for ascertainment of mesne profits. This relief was, however, not pressed, but the other prayer for attachment was granted, properties were attached and proclaimed for sale. So far the plaintiff applied in execution for ascertainment of profits and there was no judicial determination of his right in respect thereto. But plaintiff apparently realising that his previous applications were misconceived filed the petition in question under Order 20, Rule 12, praying for an inquiry as to mesne profits due to him, and the question to be decided is whether by reason of the dismissal of the previous applications, the present application is barred. It is not suggested that it is barred by limitation; but the argument appears to be that the dismissal of the previous applications is tantamount to the dismissal of the suit itself, and that therefore a fresh application which is in the nature of a fresh suit cannot be maintained, the previous dismissal operating as a bar to the maintainability of the present application. First, it is to be observed that the Court had no jurisdiction to entertain what were termed execution applications, for ascertainment of mesne profits Secondly, the Court did not purport to decide, nor did it decide the plaintiff's right be recover mesne profits; The Rule res judicata cannot therefore obviously apply. On what ground then can the dismissal of an application operate as a bar to a fresh application? In Upendra v. Sakhi Chand (1912) Cri.L.J. 3, in somewhat similar circumstances, it was held that the dismissal of an application for assessment of mesne profits was equivalent to the dismissal of the suit itself and that a fresh application would not lie. This case is distinguishable on the ground that the order which was sought to have the effect of res iudieata was that 'the case be dismissed for default on behalf of the plaintiff.' The order in those terms was said to have been made on account of laches of the plaintiff in that suit. We however fail to see how after the passing of a preliminary decree the dismissal of an application, not on the merits, but owing to, say, non-appearance of the plaintiff, or laches on his part, can result in the dismissal of the suit itself. The dismissal of the suit would involve the obliterating of the preliminary decree, that is, taking the present case and giving effect to the arguments strictly, the dismissal of the application for ascertainment of mesne profits would lead to the dismissal of the suit, that is, the suit which was inter alia for the recovery of the immoveable property, although a decree had already been passed for the possession of the property. This will indeed be a startling result. The provisions of Order 9, have no application to such oases. Take for instance, Order 9, Rule 3 which runs thus:
When neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.3. If after passing of a preliminary decree, this Rule is to be applied, the suit has to be dismissed and the decree already passed becomes vacated. The Rule does not say that the decree shall become vacated and the obvious inference therefore is that Order 9 has no application in circumstances like the present. Therefore, we have to fall back upon the general principle of res judicata and so long as the merits of an application have not been decided, we see no ground for disallowing a subsequent application, The petitioners also relied upon Mummadi Venkatiah v. Boganatham Venkata Subbiah 1922 Mad. 65. That was a suit upon a mortgage and no portion of a preliminary decree was executable, and on this ground it is distinguishable. But it has been argued that the principle underlying that ruling is equally applicable here. For the reasons we have given, we are not prepared, at any rate, to extend the application of the principle given effect to in that decision and, in our opinion, the Subordinate Judge has correctly decided the point, and the Civil Revision Petition is accordingly dismissed with costs.