Trevelyan and Stevens, JJ.
1. The facts necessary to narrate for the determination of this case are not many. A suit was brought for possession of a certain property, and a decree was made on the 10th August 1886 giving a right to obtain possession of 1 1/4 bighas of the property claimed and mesne profits. On the 27th November 1888 an application for execution was made, and on the 21st August 1892, according to the facts found by the Court below, the next application was made. That was an application for possession and for an inquiry as to mesne profits. Our decision must in reality turn on what took place on that application. A notice was issued and rightly so, inasmuch as more than a year had expired since the date of the decree, and inasmuch as the defendant was entitled to notice of an application for an inquiry as to mesne profits. This application, we may observe, was partly an application in execution of decree, that is to say, in so far as it sought for possession of the property. But as pointed out by the decision of the full Bench in Puran Chand v. Roy Radha Kishen (1891) I. L. R. 19 Cal. 132 so far as regards wasilat, it is not an application for execution, but an application in the suit, not in execution of the decree but in pursuance of the decree. A proceeding in execution is a proceeding enforcing a decree made requiring a party to do or to abstain from doing some particular thing. It may be that the decree provides for possession or the payment of money. A proceeding in execution means a proceeding to enforce an order already made. The order made in this case was not an order to do a particular thing, as a result of the decree, but an order in the suit directing an inquiry into the mesne profits. That is not a proceeding in execution of the decree. To that extent, therefore, the application was not an application in execution of the decree. The order was as follows: 'Notice could not be served on account of want of identifier; no further step is taken. The case is, therefore, struck off.'
2. It is a common practice in the Courts in the districts, when no steps are taken in execution proceedings, to strike off the case from the file. It is necessary in each case to see what is meant by an order striking off the case. If the object is only for the convenience of the Court's work and to ascertain the number of pending cases by taking the case off the list, then such order does not prevent a fresh application. But, on the other hand, if the intention of the Court was thereby to determine a matter in issue between the parties, then it might be that the effect of striking off the case would be to prevent further proceedings. As far as we can see the District Judge has treated this matter as if it was entirely a proceeding in execution of decree, and did not realize the distinction between the two portions of the claim, and that there was one portion which was not a proceeding in execution.
3. If that was so, it was not his intention to determine the question between the parties. The question remains whether this would operate as a bar to further proceedings in regard to the inquiry into mesne profits. In our opinion it does not. If there had been anything approaching to a determination of the question, then the removal of the case from the file might have operated to prevent a re-consideration of that question; but, in our opinion, in this case nothing of the kind was done.
4. A further application was made for the ascertainment of mesne profits on the 20th August 1895. It is quite clear that, having regard to the decision of the Full Bench in Puran Chand v. Boy Badha Kishen (1891) I.L.R. 19 Cal. 132 this application is not barred by limitation.
5. The learned Vakil for the respondent says that we ought not to accept a construction of law which would result in keeping alive such applications for an indefinite time. But, unless there is any limitation provided by the law, it is not for us to make one. There might be, apart from the limitation which has been contended for, a limitation applicable to a case of this kind. At any rate, it is quite clear that the Court would have power to prevent the abuse of its processes. Every Court has the power to do that. Following the decision of the Full Bench in Puran Chand v. Roy Badha Kishen (1891) I.L.R. 19 Cal. 132 we hold that this application was not barred. That disposes of the main portion of the argument.
6. The learned District Judge has acted on a decision of Phear and Morris, JJ.---Bunsee Singh v. Nuzuf Ali Beg (1874) 22 W. R. 328 ---and has held that the application could not be made because the applicant has lost his right to possession to the property. That was a decision upon a section of Act VIII of 1859, Section 196, which differed from the terms of Section 211 of the Code of Civil Procedure, which is the law now in force. Section 196 of Act VIII of 1859 is in these terms: 'When the suit is for land or other property paying rent, the Court may provide in the decree for the payment of mesne profits or rent on such land or other property from the date of the suit until the date of delivery of possession to the decree-holder with interest thereupon at such rate as tire Court may think proper.'
7. The law on the subject now in force, Section 211 of the Code of Civil Procedure, runs thus: 'When the suit is for the recovery of possession of immoveable property yielding rent or other profit, the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made or until the expiration of three years from the date of the decree (whichever event first occurs) with interest thereupon at such rate as the Court thinks fit;' so that as matters stand at present, the plaintiff cannot obtain mesne profits for more than three years after decree. Phear and Morris, JJ., after referring to the words they had used in the case of Fuzeelun v. Keramut Hossein (1874) 21 W. R. 212 say this: 'And applying these words to the present ease, it is plain that the steps for the estimating or assessing or adjusting of mesne profits, from the date of suit up to the date when the plaintiff obtained possession, could not have been instituted until that possession was obtained; that is, could not have been instituted until the 18th January 1870. And the application of the 8th November 1872 was not even three years distant from this date.' The reasons for this decision are inapplicable to the present law.
8. The result of the argument in this case would be that, because a defendant refuses to obey an order of the Court and deliver over pessession to the plaintiff, the plaintiff must lose his right to mesne profits. We cannot say that this argument commends itself to us.
9. In the result we are of opinion that the plaintiff is entitled to an enquiry in accordance with the decree, as to mesne profits, and we decree the same.
10. The appellant is entitled to his costs in this appeal. In the lower Court each party will pay his own costs.