B.B. Ghose, J.
1. This is an appeal by defendant 1 against the final decree made by the Court below with reference to mesne profits. The plaintiffs brought a suit for recovery of immovable properties with mesne profits included in four schedules attached to their plaint. The suit for the properties included in Schedules 1, 2 and 3 was dismissed. The plaintiffs obtained a decree for the properties included in Schedule 4. This decree is dated 31st March 1908. The defendants did not appeal against that decree but the plaintiffs appealed against that portion of the claim which was dismissed by the trial Court to the High Court that is, with reference to the properties included in Schedules 1, 2 and 3. That appeal was dismissed by the High Court on 25th June 1912. The plaintiffs preferred a further appeal to the Privy Council which was also dismissed on 20th January 1920. The plaintiffs then sought for execution of the decree with regard to the properties in the fourth schedule to the plaint on 8th December 1922.
2. The present appellant raised the question that the execution was barred by limitation. This was decided against the defendants by a decision of this, Court to which I shall refer presently. There were subsequently other executions. Eventually the plaintiffs succeeded in obtaining possession of the properties in question in June 1923, and afterwards applied for assessment of mesne profits which has been allowed by the Court from the date they claimed mesne profits till the date of recovery of possession, that is, for a period of about 19 years. Against that final decree of the trial Court defendant 1 appeals.
3. The first and the most important point taken is that the plaintiffs are not entitled to mesne profits for any period beyond three years from the date of the decree of the trial Court, dated 31st March 1908. It is urged that the defendants never having appealed against the decree of the trial Court, the plaintiffs might have enforced that decree which was made in their favour and the fact that they were dissatisfied with the portion of the decree dismissing their claim and carried their appeal to the Privy Council does not entitle them to have the mesne profits assessed with reference to the decree made by the Privy Council on 20th January 1920. The decree in this case which is sought to be executed was passed in the trial Court before the new Code came into operation. The assessment was, therefore, made in the execution proceedings according to the procedure under the Civil Procedure Code of 1882. No authority was brought to our notice about the meaning of the expression 'decree' with reference to Section 211 of the Code of of 1882. It is contended on behalf of the appellant that as the decree made in favour of the plaintiffs with regard to Schedule 4 was not jeopardised by any appeal, the decree of the final appellate Court should not be considered as the basis of calculation of the mesne profits. There is authority for the proposition that if the decree of the trial Court is reversed on first appeal and on further appeal the original decree is restored, then the mesne profits should be calculated until three years as from the date of the decree in the final appeal : see Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1901) 23 All. 152. In Trailohya Nath Roy v. Jogendra Nath (1908) 35 Cal. 1017, it was held without question that where a decree of the trial Court is affirmed on appeal, the decree of the appellate Court should be considered as the decree for calculation of mesne profits. But there is no case in which the condition as has happened in the present case, has been considered with reference to the question of mesne profits. In a fit case the question may perhaps be one which should be decided by a Pull Bench, having regard to the great divergence of opinion both with regard to the question of execution and with regard to the question of restitution where a decree is appealed against and affirmed on appeal. But we are relieved from the necessity of referring a general question on the point to the Pull Bench in this case having regard to the fact that as between the parties to this case the question has been decided at a previous stage that the decree of the Privy Council is only the decree that has to be executed. That case is Abdul Alim v. Abdul Hafez : AIR1927Cal89 . As between the parties it must be held that the question is concluded by the previous decision, on the authority the cases, Ram Kirpal Shukul v. Mt. Rup Korri (1884) 6 All. 269, Bani Ram v. Nanku Mal (1884) 7 All. 102 and Hook v. Administrator General of Bengal A.I.R. 1921 P.C. 11. As was observed in the case of Raja Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1901) 23 All. 152 an executing Court cannot take the view that with regard to the question of the decree for possession it was executing the decree of the Privy Council dated 20th January 1920 and for the purpose of calculating the mesne profits it was executing the decree of the trial Court dated 31st March 1908. The first ground, therefore, raised-against the judgment of the lower Court must fail. It was contended by the learned advocate for the appellant that this decision would cause great hardship to his client, but as was pointed out by Cuming, J., in his judgment in the previous case between the parties Abdul Alim v. Abdul Hakim : AIR1927Cal89 defendant might have saved himself from trouble by at once relinquishing possession in favour of the plaintiff as he did not choose to appeal from the decree of the trial Court and serving notice through Court of such relinquishment of possession.
4. The second point urged on behalf of the appellant is that the mesne profits should not have been calculated on the basis of the produce as the Subordinate Judge has done, but he ought to have allowed mesne profits at the rate allowed for the years 1312 to 1314, that is to say, at the rate of Rs. 14 per year. It is also urged that the mesne profits should not have been allowed on the basis of what the loss was to the plaintiffs but on the basis of what the defendants got. But the definition of mesne profits shows that it should be calculated as the profits which the person in wrongful possession actually received or might with ordinary diligence have received. Before dispossession during the time of the plaintiffs' predecessor the land was in possession of persons who used to render services to the owners. But the defendants dispossessed the plaintiffs by forbidding those persons from acknowledging the plaintiffs as owners, after they became entitled to the properties, and the defendants instigated the was her men who were in possession to resist khas possession being taken by the plaintiffs. It appears that those persons were willing to deliver khas possession to the plaintiffs when one of these men who was in actual possession had left the land, the judgment-debtor appellant took has possession and caused the land to be cultivated for some years by his own servants. It is urged on behalf of the appellant that for those years only the plaintiffs might have been allowed mesne profits on the basis of the produce. That argument can hardly be accepted having regard to the fact that the appellant might have with ordinary diligence cultivated the land himself as he did for a certain period during dispossession. The lower Court wa3, therefore right in allowing mesna profits in the manner it has done.
5. The next point urged is that interest should not have been allowed up to the date of the suit. There is hardly any substance in that argument, because the appellant having in his hands money which was payable to the plaintiffs for mesne profits was bound to pay compensation by way of interest.
6. There is, however, a slight inaccuracy. in the matter of calculation of the mesne profit and it is this that it should be calculated until three years of the date of the decree made by the Privy Council, that is, 20th January 1920, which would take us to 20fch January 1923. Instead of doing that, the Subordinate Judge calculated the mesne profits up to 30th June 1923 when possession was delivered.
7. The decree, therefore, of the lower Court should be modified to this extent that the amount should be reduced by Rs. 190, that is the profits with interest for the period from 20bh January 1923 to 30th June 1923. With this modification the appeal is dismissed with costs, the hearing fee being assessed at five gold mohurs.
8. I agree.