1. This is an appeal by the legal representatives of two of the plaintiffs in the suit in which the decree passed on 10th February 1913, in Suit No. 65 of 1910, in the Second Court of the Subordinate Judge, Dacca, directed that the amount of mesne profits which the plaintiffs were entitled to get from defendants in the suit was to be ascertained afterwards, according to the petition of the plaintiffs, at the time of the execution of the decree. It appears that the appellants as the legal representative of the original plaintiffs 2 (ka) and 8 applied for ascertainment of mesne profit before the Court below, and it must be taken to be established in the case before us that all the necessary representatives of those plaintiffs had not applied for substitution of their names within the time limited by law, as mentioned in Order 22, Rule 3, Civil P. C. On that state of facts the learned Subordinate Judge in the Court below held that the proceeding for ascertainment of mesne profits had abated so far as the shares of the two plaintiffs mentioned above were concerned, regard being had to the position that no cogent grounds had been made out or even attempted to be made out for setting aside the abatement, on any proper application made in that behalf. The result of the decision arrived at by the Court below was that the suit in which a decree for ascertainment of mesne profits was passed in favour of the original plaintiffs 2 (ka) and 8, was considered to have abated, so far as it related to the right of those plaintiffs to get mesne profits from the defendants in the suit.
2. The material question for consideration in the case before us is whether the provisions contained in Order 22, Rule 3, Civil P. C., were applicable to a case in which a preliminary decree has been passed directing ascertainment of mesne profits. In the case of suit for enforcement of mortgage, it has been held by this Court, in consonance with the rule laid down by their Lordships of the Judicial Committee in Lachmi Narain Marwari v. Bal Mukund Marwari 1924 P C 198, that no abatement of a suit takes place, when the plaintiff dies after a preliminary decree has been passed, for the reason of non substitution of the legal representatives within the time limited by law: see Nazir Ahammad v. Tamijaddi Ahammad 1929 Cal 430. The same view was taken by a Full Bench of the Madras High Court in Perumal Pillay v. Perumal Chetty 1928 Mad 914, and we are unable to agree with the reason for the decision of the Allahabad High Court in Anmol Singh v. Hari Sankar 1930 All 779, taking a view, contrary to that expressed by this Court in Nazir Ahammad v. Tamijaddi Ahammad 1929 Cal 430, mentioned above, with which we are in entire agreement. In the case of a proceeding for ascertainment of mesne profits, it was held by the Patna High Court in Mt. Bhattia v. Abdus Shakur 1931 Pat 57, that Order 22, Rule 3, Civil P. C., did not apply to an application made after a decree in a preliminary form had been passed for ascertainment of mesne profits, inasmuch as after the decree has been passed, the suit could not be dismissed, unless the decree has been reversed, and no question of abatement could arise in such case even though one of the parties dies after the preliminary decree is passed and no legal representative is brought on the record within the time allowed by law. In our judgment, there can be no question that the above decision of the Patna High Court is in accordance with the law laid down by the Judicial Committee of the Privy Council in Lachmi Narain Marwari v. Bal Mukund Marwari 1924 P C 198, mentioned above, that:
The parties have on the making of the decree acquired rights or incurred liability which are fixed, unless or until the decree is varied or set aside.
3. On the conclusion arrived at by us, as indicated above, the decision of the Court below holding that the claim for mesne profits so far as the original plaintiffs 2 (ka) and 8 were concerned, had abated, must be set aside. The legal representatives of those plaintiffs, the appellants in this Court, are entitled to have their share of the mesne profits ascertained on the application made before the Court below in that behalf. A question of the amount of court-fees payable in the memorandum of appeal filed in this Court was raised before us on behalf of the respondents. It appears that the court-fees on the amount of Rs. 500 were paid on the memorandum of appeal, that being the amount at which the claim for mesne profits was tentatively valued in the suit. In our opinion no further amount was payable by the appellants as court-fees at this stage, seeing that their application for ascertainment of mesne profits was held to have abated. There can be no question that the appellants will be required to pay, according to the directions of the Court below, adequate courtfees, in proper time, on the amount which is ascertained to be their share of the mesne profits, and for which the defendants-respondents are held liable.
4. In the result, the appeal is allowed, the decision of the Court below and the decree passed by it disentitling the appellants as the legal representatives of the original plaintiffs 2 (ka) and (8), are set aside, and we direct that mesne profits to which the appellants are held entitled under the decree in Suit No. 65 of 1910 in the second Court of the Subordinate Judge of Dacca, be ascertained in accordance with law. The appellants are entitled to get their costs in the lower Court as also their costs in this Court from the defendants-respondents in this appeal. The hearing fee in this appeal is assessed at three gold mohurs.