1. This appeal arises out of a suit brought by the plaintiff, respondent, for declaration of his title to, and for recovery of mesne profits for certain years in respect of, a two-annas share of some land, and for a perpetual injunction restraining the defendants from holding possession thereof, on the allegation that the plaintiff's mother had obtained a decree for the said share and that the plaintiff was entitled to the same as the sole heir of his mother.
2. The defendants, amongst other things, urged that the suit was barred by limitation and also by Section 13 of the Code of Civil Procedure, and that the plaintiff, who was out of possession, could not sue for any of the reliefs claimed.
3. The first Court dismissed the suit, holding that the plaintiff's right to obtain possession was barred, his predecessor in title having sued for possession and having failed to obtain a decree for it, and that being disentitled to possession of the disputed land, the plaintiff could not restrain others from holding possession of the same.
4. On appeal, the Lower Appellate Court has reversed the first Court's decree, and remanded the case under Section 562 of the Code of Civil Procedure, for trial on the merits, holding that though the prayer for declaration of title may be barred, the claim as to the other reliefs was maintainable.
5. In second appeal, it is contended for the defendants that the Lower Appellate Court was wrong in law in remanding the case for trial on the merits when the suit was not maintainable, the plaintiff's right to recover possession being burred by Section 13 of the Code of Civil Procedure, and the allegation in the plaint not being sufficient to entitle the plaintiff to obtain a perpetual injunction.
6. The admitted facts upon which the argument that the plaintiff has lost his right to recover possession is based, are shortly these: The plaintiff's mother brought a suit for declaration of her title to, and for recovery of possession of, the property in dispute. The suit was dismissed by the first Court. The Lower Appellate Court, whilst finding in its judgment that the plaintiff in that suit was entitled to possession, gave her a decree which did not contain any direction for delivery of possession to her; and that decree was confirmed by this Court on second appeal. The present plaintiff was subsequently substituted in that decree in the place of his mother as her legal representative and in his attempt to recover possession in execution of that decree, he was defeated on the ground that the decree contained no direction for delivery of possession. He then applied to the Lower Appellate Court, under Section 206 of the Civil Procedure Code, for amendment of the decree, but his application was refused as being barred by limitation, and this Court, upon an application under Section 622 of the Code of Civil Procedure, declined to interfere with the order of the lower Appellate Court, on the ground that Court had rightly refused to amend the decree, as it had no jurisdiction to do so after the decree had been confirmed by this Court.
7. From the foregoing statement of facts it is clear, no doubt, that the plaintiff's right to recover possession of the property in dispute by a fresh suit is barred by Section 13 of the Civil Procedure Code, Explanation III of that section distinctly providing that any relief claimed which is not expressly granted should be deemed to have been refused. But it is equally clear from the judgment of the Subordinate Judge in the former case that the plaintiff's mother was entitled to recover possession, and that it was only by oversight that that relief was not granted by the decree. The plaintiff was therefore clearly entitled to have that decree amended, under Section 206 of the Code, by being brought into conformity with the judgment, and we think he is still entitled to have the decree so amended upon a proper application made to the proper Court. Such an application is not, as the Subordinate Judge erroneously held, barred by limitation. It has been held, by the Bombay High Court in Shivapa v. Shivpanch Lingapa I.L.R. 11 Bom. 284 and by the Madras High Court in Jivraji v. Pragji I.L.R. 10 Mad. 51, that there is no limitation for an application under Section 206, it being the duty of the Court to amend a decree under that section whenever it is found to be not in conformity with its judgment, and in that view we fully agree. Nor does the refusal of this Court to interfere with the order of the Subordinate Judge declining to amend the decree, stand in the way of a proper application for such amendment being granted by this Court, as this Court refused to interfere, not on the ground of the application being barred by limitation, but on the ground of its having been made to a wrong Court. We are, therefore, of opinion that the plaintiff's right to recover possession is not extinguished, though he is not entitled to do so by a fresh suit. Then, as for his claim for a declaration of title, it is, properly speaking, not barred, bat is wholly unnecessary, his predecessor in title having already by the decree in the former suit obtained such declaration, and he having been substituted in her place in that decree. That being so, the plaintiff clearly has made out his title to the land in dispute; and that title was a subsisting title at the date of the institution of this suit, as the Lower Appellate Court has found in this case that the dispossession of the plaintiff's predecessor in title took place within 12 years before that date.
8. The plaintiff, therefore, having a subsisting title is, in our opinion, entitled though out of possession, to maintain the present suit so far as it seeks to recover mesne profits. The case of Dyamoyee Dayee v. Modhoo Soodun Mytee 3 W.R. 147 and Dwarkaram Misser v. Jogessur Lall 21 W.R. 276 may be cited as authority in favour of this view.
9. The remand order made by the Lower Appellate Court should therefore be affirmed, so far as it directs the trial of the suit on the merits, in respect of the claim for mesne profits. The prayer for a perpetual injunction must be disallowed, as no case is made out in the plaint for such relief.
10. The result is that, subject to the modification indicated above, the order of the Lower Appellate Court is affirmed, and this appeal dismissed, but without costs, as the respondent did not appear.