1. This is an appeal against a judgment of the District Judge of Mymensingh, dated the 20th December 1899. The point raised in this appeal is of a novel nature, the question for determination being whether the dismissal of an application for the determination of mesne profits means the same thing as the dismissal of the suit. The facts of the case are these. The decree-holders obtained a decree against the judgment-debtor for possession of certain lands with mesne profits. The decree-holders first applied for possession of the land and obtained it. Execution proceedings were then dismissed. The decree-holders then applied for realization of costs and for determination of mesne profits. The costs were realized, and execution proceedings were dismissed on the 21st of November 1896.
2. On the 28th of January 1898 the decree-holders again applied for determination of mesne profits, upon which two of the judgment-debtors opposed the application on the ground that the dismissal of the application for the determination of mesne profits on the 21st of November 1896 operated as a dismissal of their claim to mesne profits; and, inasmuch as they had taken no steps to have their case revived by application or appeal, that order was final.
3. The District Judge has disallowed this contention and has allowed the application for determination of mesne profits to proceed.
4. An appeal is preferred against his order. Before us it is urged, as in the Court below, that the dismissal of the application for determination of mesne profits operates as a dismissal of the decree-holders' claim to mesne profits, and bars their making any further application of this nature. In support of this contention two cases have been cited before us, viz., the case of Puran Chcmd v. Roy Radha Kishen (1891) I.L.R. 19 Cal. 132 and the case of Kewal Kishan Singh v. Soohhari (1896) I.L.R. 24 Cal. 173. The first of these cases is not very much in point, inasmuch as all that it decided was that neither Article 178 nor Article 179 of the Limitation Act applies to an application to ascertain the amount of mesne profits awarded by a decree in accordance with Sections 211 and 212, Code of Civil Procedure. But the learned pleader for the appellant in this case relies upon a passage at the bottom of page 136, in which it is said that proceedings for the determination of the amount of wasilat are not proceedings in execution of a decree in regard to any fixed sum, but merely a continuation of the original suit, and carried on in the same way as if a single suit were brought for mesne profits by itself.
5. We do not, however, see that the learned Judges who decided this case laid down any such general rule, as it will be necessary to hold has been laid down, if we apply the principle sought to be deduced from that case to the present one, viz., that an application for mesne profits is in every respect to be treated as a continuation of the suit or as the suit itself; and we are unable to give any further development to the principle laid down in that case, or to hold that that case decided anything more than is pointed out above, namely, that neither Article 178 nor Article 179 of the Limitation Act applies to an application to ascertain the amount of the mesne profits allowed by the decree. The case of Kewal Kishan Singh v. Soohhari (1896) I.L.R. 24 Cal. 173 would seem to go a little further. In this case the Court executing the decree had ascertained the amount of mesne profits; but the necessary Court fees had not been deposited within the time fixed by the Court, and that being so, it was held that the suit, that is, the claim in respect of mesne profits, must be dismissed, and that after such dismissal no application for execution in respect of mesne profits could be entertained. This decision seems to extend further the ruling that an application for the determination of mesne profits is to be treated as an application in continuation of the suit, or as a proceeding in the suit; but that decision too does not lay down the principle that such an application is to be treated in every way as a suit; and, so far as we are aware, no such rule has been laid down in any decided cases of this Court or of any other Court. The practice has always been to treat applications to determine mesne profits as applications for execution of the decree, and that the striking off of such applications does not finally decide them, or prevent the decree-holder from making a further application for the determination of mesne profits. That would seem to be in accordance with the principle laid down by the Privy Council in the case of Rajah Muhesh Narain Sing v. Kishanund Misr (1862) 9 Moo. I.A. 324, in which their Lordships say: 'It would be contrary to general principles and a senseless addition to all the vexations of delay in the course of procedure to hold that, when for any reason, satisfactory or not, the execution of a final decree in a suit fails or is set aside, and the proceedings with regard to that execution are taken off the file, the whole suit is discontinued thereby, and the further proceedings are to be considered as taken in a new suit.'
6. For these reasons we think that we must hold that the order of the Judge in this case is correct; and we dismiss this appeal with costs.