Purushottam Chatterjee, J.
1. This is an application under Section 25 of the Provincial Small Cause Courts Act. The plaintiff instituted the previous suit for ejectment, for rent and for mesne profits. In that suit the claim for mesne profits was not pressed and therefore that claim was dismissed. Subsequently the present suit was instituted claiming mesne profits.
2. The first point taken by the learned Advocate for the petitioner is that this is really a suit for profits and therefore, the Small Cause Court had no jurisdiction in the matter. A person may lawfully be entitled to some benefits arising out of a property. This we understand to be profit. But when a person gets some benefit of a property because of his wrongful possession, we do not call it profit, we call it mesne profits. Therefore, profits within the meaning of the Article under the Small Cause Courts Act does not include mesne profits. Finally the matter came up betore a Full Bench of this Court and it was held that the suit for mesne profits was a suit in the nature of being cognizable by a Small Cause Court.
3. Mr. Sen Gupta on behalf of the petitioner further states that here there was no dispossession by anybody. The former tenant continued in possession and therefore he did not dispossess anybody and hence it was not mesne profits within the meaning of Order 20 Rule 12 C. P. C. The context of Order 20 Rule 12 C. P. C. is a suit for ejectment. That context refers to wrongful possession and the definition of the word 'mesne profits' refers to that very same thing namely, wrongful possession, not dispossession. In that view of the matter, the first point must be overruled.
4. The second point taken by Mr. Sen Gupta is that this suit should not have been instituted in the Small Cause Court as some accounts had tobe taken. There is a clear distinction between suits for accounts and suits in which decrees are passed after taking some accounts, A suit for accounts means a suit by a person who is entitled to accounts from a person who is liable to render accounts either on the basis of a contract or because of fiduciary relationship. But this is not a suit for accounts but a suit for money and the amount is to be determined on accounting, I cannot accept this point as well.
5. The third point relating to the quantum of mesne profits is a question of fact which should not be considered in a petition under Section 25 of the Act.
6. With regard to the fourth point I must say this is an arguable point and what is stated by Mr. Sen Gupta is that there was a previous suit. In that previous suit there was a claim for mesne profits and that claim was dismissed. The result is that this is barred under Section 11 C.P.C. The learned Small Cause Court Judge answered the question by saying that there was no adjudication relating to the rights of the parties. But I am afraid I cannot accept it in view of the explanation (v) to Section 11. Explanation (v) to Section 11 says that any relief claimed under the plaint which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Hence if a claim is made and that claim is not considered, for the purposes of Section 11, it will be considered as if it was prayed, adjudicated and then refused. In that view of the matter I cannot agree with the learned Small Cause Court Judge when he says that as there was no adjudication it would not operate as res judicata. Nonetheless, I have come to the same conclusion but on different reasons. This explanation has been considered to include only those cases where it is mandatory upon the Court to pass a decree and it has not been considered to include those cases where the decree depends upon the discretion of the court. The wording of Order 20 Rule 12 C. P. C. clearly shows that the court may pass a decree for future mesne profits. That means that the court may not. This very point has been agitated in this High Court from the days of ILR 32 Cal 118,, Hays v. Padnianand Singh; Rampini and Pratt JJ. (Page 118) following the decisions in some earlier cases agreed that the court was not bound to pass a decree for mesne profits. As the court was not bound to pass such a decree, this explanation to section as it stood at that time would not apply. I, therefore, agree with the learned Small Cause Court Judge when he said that the suit is not barred by the doctrine of res judicata. But unfortunately I do not agree with the reasons of the learned Judge given above.
7. If the petitioner deposits Rs. 300/- (Rupees three hundred only) within two months from this date in the executing court, further proceedings in execution will remain stayed for six months to enable the defendant to deposit the balance of the decretal amount. If the petitioner does not pay the aforesaid sum of Rs. 300/- (Rupees Three hundred only) within two months from this date, the decree would become executable at once. Execution proceedings will remain stayed for two months from date.
8. Except for this modification, the Rule is discharged.
9. In the circumstances of the case, I think each party should bear his own costs throughout.