1. This appeal arisen out of a suit for recovery of possession of a certain parcel or parcels of land and for mesne profits. The suit was instituted on the 4th 1907 and the decree, awarding possession and directing enquiry into the amount of mesne profits both before suit and also pending the suit was made on the 15th July 1908, Appeals against this decision followed and the final decision of this Court was not arrived at until the 30th March 1915. Meanwhile on the 2nd January 1915 an application for the ascertainment of mesne profits was made in the Court of the 5th Munsif of Comilla, the Court in which the original suit had been instituted and decided. Proceedings on this application continued for sometime but eventually on the 29th January 1916 the application was dismissed for default in the absence of both parties. That was a dismissal to which the order and rule' applicable is Order IX, Rules 3 and 4. On the 21st December 1916 or on the 30th March 1917, a second application for ascertainment of mesne profits was again made in the Court of the 5th Munsif of Comilla. It should be noted that when the first application of the 2nd January 1915 was made, the claim was laid at a sum of Rs. 300 odd in respect of the period before suit and a sum of Rs. 1,300 and odd in respect of the period pending suit. When the second application was made, the aggregate claim had swollen to Rs. 1,700 and odd. On this second application the Munsif of the 5th Court made an order dismissing the application in so far as it referred to the period before suit, and in so far as the period pending suit was concerned, the amount claimed being the sum of Rs. 1,400, he made an order which had the effect that this application was represented in the Court of the 4th Munsif, that Munsif having jurisdiction in all suits not exceeding Rs. 2,000 in value. In the Court of the 4th Munsif and again in the appeal to the District Judge it has been held that the order of the Munsif, 5th Court, made on the 29th January 1916 has the effect of making the present application not maintainable. It is against this order that the present appeal is preferred.
2. On behalf of the appellants it is contended that the order of the 29th January 1916, being one made in a Court of jurisdiction not competent to entertain an application in a suit of that value should, be treated as null and void or at least should be set aside and that the present application should, therefore, be treated as one which should be proceeded with and decided on the merits. On behalf of the respondents on the strength of the authorities in Upenara Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 3 and Purna Chandra Ray v. Jogendra Nath 50 Ind. Cas. 262 : 29 C.L.J. 470 and the Full Bench ease reported as Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534 it is contended that further proceedings for the purpose of ascertaining mesne profits can be taken only by way of a fresh suit and that the present application for ascertainment of mesne profits is not such a suit. We may next mention that in this Court the appellants have given up their claim for mesne profits in so far as the period antecedent to suit is concerned. When this has been done, the present case is not to be distinguished in any way from the case of Bhupendra Kumar v. Purna Chandra Bose 8 Ind. Cas. 34 : 13 C.L.J. 132 : 15 C.W.N. 506. We must hold that the order of the 29th January 1916 in the Court of the 5th Munsif, in so far as at least as it is an order dismissing the application for ascertainment of mesne profits pendent lite, was one made by a Court not of competent jurisdiction. On that ground we get it aside. That order being set aside, it follows that there is no bar to the entertainment of the present application for ascertainment of mesne profits.
3. We, therefore, get aside the orders of the Courts below and decree this appeal and direct that the application for the ascertainment of mesne profits be now proceeded with and heard and determined on its merits.
4. The appellants are entitled to their costs in all Courts. We assess the hearing fee in this Court at three gold mohurs.
5. I agree.