1. This appeal is directed against an order in a proceeding for assessment of mesne profits. The appellants, who were plaintiffs in the original suit, obtained a decree in the primary Court, on the 30th June 1902, for recovery of possession and mesne profits. This decree was affirmed by this Court on the 14th June 1905, The decree directed that if possession was delivered by the defendants to the plaintiffs within one month from the date thereof, the defendants would not be held liable for mesne profits; but if possession was not so delivered, the defendants would be liable for mesne profits for the period antecedent to and during the pendency of the suit. The decree also contained a direction that in the event of ascertainment of mesne profits, the shares of the parties would be first determined and possession would be delivered according to the shares so calculated. The case for the appellants is that possession was not amicably delivered, and on the 13th December 1905 they applied for execution of the decree. In this application, they prayed that the shares of the plaintiffs and defendants might be determined and that joint possession might be delivered in accordance with the result of this enquiry; it was further stated that an application for ascertainment of mesne profits would be made separately. In answer to this application, the judgment debtors objected that possession had already been delivered by them to the decree-holders. The Court investigated the question in controversy and came to the conclusion that possession had not been delivered. The extent of the shares of the parties was determined and possession delivered accordingly. This order was made on the 26th May 1906. On the 20th May 1909, the plaintiffs applied for ascertainment of mesne profits. The judgment-debtors objected that mesne profits could not be claimed as possession had been delivered within one month from the date of the decree. The Subordinate Judge has now found that possession was delivered as alleged. On the present appeal by the decree-holders, it has been contended that the matter is concluded by the order of the 26th May 1906. On behalf of the respondents it has been argued that the question is open for consideration, inasmuch as the question now under discussion, namely, the amount of mesne profits payable by the defendants to the plaintiffs, was not before the Court on the application of the 13th December 1905. In our opinion, there is no room for serious discussion that the rights of the parties must be taken to have been determined by the order of the 26th May 1906. It is true that mesne profits were not claimed in the application of the 13th December 1905, but possession was demanded by the decree holders. This application was resisted by the defendants on the ground that possession had been previously amicably delivered by them. The Court was, therefore, invited by the parties to determine whether or not possession had been delivered. The question was directly and substantially in issue between the parties and the decision thereon must be deemed conclusive between them at all subsequent stages of the execution proceedings: Mungul Pershad v. Grija Kant 8 C. 51 (P.C.) ; 8 I.A. 123 ; 11 C.L.R. 113 ; 4 Sar. P.C.J. 249 ; 4 Ind. Dec. (N.S.) 32. Ram Kirpal v. Rup Kuari 6 A. 289 ; 11 I.A. 37 ; 4 Sar. P.C.J. 489 ; 3 Ind. Dec. (N.S.) 718 and Beni Ram v. Nanhu Mal 7 A. 102 ; 11 I.A. 181 ; 4 Sar. P.C.J. 564 ; 4 Ind. Dec. (N.S.) 138. We hold accordingly that possession was not delivered as alleged by the defendants and that their liability to pay mesne profits must be determined on the basis of the order of the 26th May 1906.
2. The result is that this appeal is allowed, the order of the Subordinate Judge set aside and the case remanded to him in order that the amount of mesne profits may be calculated. The appellants are entitled to their costs both in this Court and in the Courts below. We assess the hearing-fee in this Court at two gold mohurs.
3. A difficulty, however, has arisen, to which we must now advert. The decree for possession was obtained against three persons, Bolakilal, Abdulla Yunus and Sital Prosad. Sital Prosad subsequently died and left as his representatives three infant sons. The order of the Court below was made in favour of all these persons, and, in the present appeal, not only the widow of Bolakilal and Abdulla Yunus but also the three infant sons of Sital Prosad were joined as respondents. These infants had been represented in the Court below by one of the officers in the Court of the District Judge as their guardian ad litem. In this Court, that officer has been discharged and the Deputy Registrar appointed guardian ad litem. The appellants were directed to deposit the prescribed costs for the appointment of a Vakil on behalf of the Deputy Registrar, and to file the usual indemnity bond. This order they failed to carry out, and as a consequence, on the 14th June 1912, the appeal was dismissed in so far as the minors were concerned. Before this order was made, it had been held on the 27th July 1910 that one of the sons of Sital Prosad, Gobindo Prosad by name, had attained majority. The order of dismissal of the 14th June 1912 would consequently apply to two of the three infant sons of Sital Prosad, namely, Hari Prosad and Giaya Prosad. It is plain that in so far as they are concerned, the order of the Subordinate Judge cannot be disturbed. This raises the question, whether the appellants are entitled to any relief, and, if so, what. The appellants have argued that it is immaterial that the appeal has already been dismissed as against the two infant sons of Sital Prosad, and, that it is still open to them to obtain a decree for the entire mesne profits against the widow of Bolakilal, Abdulla Yunus and the major son of Sital Prosad. In our opinion, this view cannot possibly be supported. Nor can we accept the extreme contention of the judgment-debtors that the appeal should fail in its entirety, and the whole claim for mesne profits be dismissed. The position is precisely the same as if the decree holders had entered into a compromise with two of the three sons of Sital Prosad and released them from liability. In that event, the decree holders would still be entitled to obtain a decree as against the three judgment-debtors in respect of what would be their share of the mesne profits. This is clear from the decision of this Court in Ram Ratan Kapali v. Aswini Kumar Dutt 6 Ind. Cas. 69 ; 37 C. 559 ; 14 C.W.N. 849 ; 11 C.L.J. 503. We accordingly direct the Subordinate Judge to assess mesne profits on the basis of the order of the 26th May 1906; but the amount will be calculated, only in respect of the shares of Bolakilal and Abdulla Yunus and a third share of Sital Prosad. The Subordinate Judge will be at liberty to take evidence to enable him to determine the respective shares of the judgment debtors; if no evidence is given, the presumption will be that the original judgment-debtors were liable in equal shares.
4. It is conceded that this order will govern the other appeal (Miscellaneous Appeal No. 10 of 1910); but there will be no separate order for costs.