1. This is a petition by a decree-holder against an order of the Subordinate Judge, refusing to grant his prayer for ascertainment of mesne profits. The petitioner was the plaintiff in a suit. He claimed the right of a shebait of the property in suit and claimed the mesne profits from the persons in alleged wrongful possession of the same. The suit was decreed in July 1929. The decree was affirmed in appeal in July 1933 and this Court in its judgment gave directions how the mesne profits were to be ascertained. Thereafter, on 19th December 1934, the defendants opposite party obtained special leave from their Lordships of the Judicial Committee to appeal to the Judicial Committee. In the meantime, in September 1933, the petitioner applied to the Court to determine the mesne profits from May 1922 to March 1934 when the delivery of possession was given to him. The opposite party opposed the petition and the learned Subordinate Judge on the authority of the case in Bank of Australasia v. Breillat (1847) 6 Moore P C 152 has held that the admission of the appeal by special leave of the Privy Council operated to stay further proceedings in the suit and the Court had no jurisdiction to ascertain the mesne profits as prayed for by the plaintiff petitioner.
2. It is urged by Mr. Gupta that it was open to the opposite party to apply to the Privy Council for stay of proceedings or they might apply to the High Court for stay of proceedings and the High Court in such a case has authority to grant stay of proceedings, but that the Subordinate Judge committed an error in thinking that the admission of the appeal by the Privy Council operated to stay further proceedings. Upon hearing the learned advocates on both sides, we are of opinion that the view of the learned Subordinate Judge is erroneous. No authority is shown to us for the broad proposition that an admission of an appeal by special leave of the Privy Council operates ipso facto as a stay of further proceedings. The only authority in support of the proposition is that noted by the Subordinate Judge where it was said: 'The admission of the appeal will, of course, stay the proceedings in the Court below.' The learned advocate urges that the expression 'of course' shows that the Privy Council intended thereby to lay down the proposition that in every case where an appeal is admitted, further proceedings should ipso facto be stayed. From a subsequent decision, Mohesh Chandra Dhal v. Satrughan Dhal (1900) 27 Cal 1, it appears that a direction to the effect of the stay of proceedings must be contained in the order giving leave.
3. In our opinion the observations in Bank of Australasia v. Breillat (1847) 6 Moore P C 152 should be read as applying to the facts of that case and are not an authority for the general proposition that every admission of an appeal by the Privy Council operates as such for stay of further proceedings. The order complained of is reversed and the Rule is made absolute. This does not close the matter, for the opposite party may apply to the High Court for stay of further proceedings if they be so advised. In the circumstances the parties will bear their own costs in this Court.