Lancelot Sanderson, C.J.
1. This is an appeal under the Letters Patent in respect of an appeal in which Mr. Justice Doss and my learned brother Mr. Justice Richardson differed in opinion.
2. The judgments were delivered so long ago as June 1909. Both the judgments were read by Mr. Justice Richardson, because, as we have been informed, on that date Mr. Justice Doss was away on leave; and apparently some doubt arose as to whether the judgment of Mr. Justice Doss was a valid judgment, having regard to the fact that that was read by my learned brother Mr. Justice Richardson when Mr. Justice Doss was away from Court on leave, and apparently this matter was left in abeyance for many years. It was brought before my learned brother Mr. Justice Mookerjee and me last year, and it was argued on the one hand that Mr. Justice Doss's judgment was a valid judgment, and on the other that it was not a valid judgment. We came to the conclusion that it was a valid judgment and consequently the appellant would have had a right of appeal under the Letters Patent if he had appealed within the proper time, and having regard to the special facts that were stated to us at that time, that the time for appealing should be extended and we did extend it. The result was that this appeal was presented to Court and it has now been heard by us. I think it was necessary to state those facts and to show how this very considerable delay in this case has arisen.
3. Now, the suit in which this appeal arises was a suit brought by the plaintiffs for mesne profits in respect of the Amli years 1309, 1310, 1311 and 1312. I might say at this stage that the claim in respect of the earlier half of the year 1309 was given up by the plaintiffs at some stage of the proceedings. The learned Subordinate Judge decreed the suit, and declared that the plaintiffs were entitled to get mesne profits from the last six months of 1309 to 1312, and that a Commissioner should be appointed to take accounts from the papers filed by the plaintiffs and from other necessary papers and that the amount paid by the auction-purchaser on account of the 1311 rent and the costs of realisation should be set off against the money due to the plaintiffs and that the case should be brought up again before him after the Commissioner's report had been received. From that decision the defendant No. 1 appealed. That was the appeal which was heard by Mr. Justice Doss and my learned brother Mr. Justice Richardson. The point which arose upon the appeal was as to the Limitation Act. The defendants contended that the plaintiffs were not entitled to recover any mesne profits, except those which were received or which ought to have been received without wilful default, within three years prior to the institution of the suit.
4. The facts which are material to be stated in this matter are as follows: It appears that in October 1901, the property in question was bought by the defendant No. 1 at an auction sale held under Putni Regulation VIII of 1819. He was put in to possession in September (the auction sale took place, I understand, in October but the possession was taken as from September 1901). On the 17th of May 1902, the plaintiffs sued the defendants to set aside the sale. In that suit they made no claim for mesne profits which had accrued either before the suit or which accrued during the pendency of the suit. On the 18th of August 1902, the suit was decreed in the first Court, with the result that the sale was set aside. Then there was an appeal which was heard by the District Judge, and on the 13th of February 1903 the District Judge reversed the decree of the Subordinate Judge, with the result that the sale was affirmed. Then there was an appeal to the High Court and on the 11th of May 1905 the High Court remanded the case for further consideration and decision to the District Judge. On the 11th of September 1905, the District Judge affirmed the decision of the Subordinate Judge with the result that the sale was set aside. Then there was a further appeal to the High Court, which was heard on the 30th of May 1907, and the appeal was dismissed, the result, of course, being that the decree setting aside the sale was upheld.
5. This suit was brought on the 16th of September 1907: and the learned Vakil for the defendant No. 1 has urged that the plaintiffs are not entitled to recover any mesne profits which accrued and which were received or which might have been received prior to the 16th day of September 1904. I might point out that inasmuch as the claim was made with reference to the Amli years, September 1902 might be taken to be the beginning of 1309, September 1903 to be the beginning of 1310, September 1904 to be the beginning of 1311, September 1905 to be the beginning of 1312.
6. The first point that arises in respect of this matter is whether Article 109 of the Limitation Act which is applicable to this case, namely Act XV of 1877, applies to this case.
7. The learned Vakil for the plaintiffs has argued that Article 109 is not applicable and his ground was that Article 109 applies to profits of immoveable property belonging to the plaintiffs which have teen wrong- fully received by the defendant, and his point was that inasmuch as the defendant was put in possession in consequence of the sale which was held under the Putni Regulation, the defendant's possession could not be held to be wrongful; in other words, the defendant could not be held to be a trespasser, and that consequently the mesne profits which the defendant received prior to the 11th of September 1905 were not wrongfully received. He further urged that the matter ought to be looked upon as if the defendant had obtained possession in pursuance of a proceeding under the Regulation which was of a semi-judicial nature. With that I cannot agree. As I have already said, possession was obtained by the defendant under the sale which was held under the Putni Regulation. Our attention was drawn to that Regulation this morning and, it is clear that in this case there was an order of the Court for the sale: the sale was held by the appointed officer, and possession was given, as I assume, by the zemindar in accordance with the provisions of Clause 15 of the Regulation. But there still remains the question whether the point is right which the learned Vakil has argued, namely, that Article 109 does not apply, because it cannot be said that the profits were wrongfully received. In my judgment Article 109 does apply. I think that it is clear that when we look at the third column of the Schedule, we find that even if the possession had been obtained under a decree of the Court which was afterwards set aside on appeal this Article would have applied, and the profits would have been said to have been wrongfully received. A fortiori when possession was obtained by the defendant under the sale held under the Regulation to which I have referred, Article 109 would apply. I am confirmed in that opinion by a judgment of this Court in the case of Peary Mohun Roy v. Khelaram Sarkar 1 Ind. Cas. 157 : 35 C. 996 : 8 C.L.J. 181 : 13 C.W.N. 15 : 4 M.L.T. 419, where the facts are, very similar (to the facts of this case. In that case a patni mohal was sold under Regulation VIII of 1819 for arrears of rent on the 18th May 1900, when the defendant-purchaser came into possession. The plaintiff owners of the patni instituted a suit for setting aside the sale and obtained a decree and took possession on the 11th September 1901. The plaintiff then instituted the present suit on the 6th April 1904 for mesne profits for the period the defendant was in possession, from 18th May 1900 to 11th September 1901: 'It was held that the defendants wrongfully received profits, which were receivable by the plaintiff. Article 109 and not Article 120 governed the case and the claim for the period (18th May 1900 to 5th April 1901) preceding the three years next before the institution of the suit was barred by limitation.' I think that is a case directly in point, and I agree with the decision that was arrived at in that case.
8. Further, there is another case [Kishnanand v. Kunwar Partab Narain Singh 10 C. 785 : 11 I.A. 88 : 8 Ind. Jur. 335 : 4 Sar. P.C.J. 551 : Rafique & Jackson's P.C. No. 80 : 5 Ind. Dec. (N.S.) 526], to which we have been referred. Although in that case' the property was not sold under the Regulation which was used in this case and also in the case reported in Peary Mohun Roy v. Khelaram Sarkar 1 Ind. Cas. 157 : 35 C. 996 : 8 C.L.J. 181 : 13 C.W.N. 15 : 4 M.L.T. 419, and the defendant there was put in possession by the Settlement Officer at the instigation of the manager under the Taluqdars' Relief Act, XXIV of 1870, the principle of the decision applies to this case. It was there held that the mesne profits which were recoverable were those which had been received within three years-prior to the suit.
9. Our attention was drawn to a case, Holloway v. Guneshwar Singh 3 C.L.J. 182, and that was relied upon by the learned Vakil for the respondent. I do not think that we are bound by that decision, because the learned Judges who decided that case were of opinion that although the sale had been set aside, the order by reason of which the sale had been held and the order for possession had not in fact; been set aside, and consequently they came to the conclusion that the profits which had been received while the defendant was in possession were not wrongfully received. It is not necessary for me to say whether I agree with that or not: All that I wish to draw attention to is that inasmuch as that was one of the grounds of the decision it is really not a decision which is binding on this Court: and I may further point out that this case was decided by Mr. Justice Henderson and Mr. Justice Mitra and Mr. Justice Mitra himself was a party to the judgment in Peary Mohun Roy v. Khelaram Sarkar 1 Ind. Cas. 157 : 35 C. 996 : 8 C.L.J. 181 : 13 C.W.N. 15 : 4 M.L.T. 419 to which I have referred, and that decision was given three years after the decision in Hollyway v. Guneshwar Singh 3 C.L.J. 182 and that decision, as I have already said, is directly in point, in this case, and with it, I agree.
10 .For these reasons I am of opinion that Article 109 applies to this case and that subject to two other points which the plaintiffs have raised, the plaintiffs would not be entitled to recover any mesne profits except those which had in fact been received, or which ought to have been received without wilful default, within three years before the institution of the suit.
11. The second point raised by the learned Vakil was that the District Judge on the 13th of February 1903 by his judgment affirmed the sale and that that judgment was not finally disposed of until the 11th of September 1905 and that, therefore, during the period from the 13th of February 1903 to the 11th of September 1905 the defendant was rightfully in possession and that the plaintiffs, although they might have brought a suit on the 12th of February 1903 to recover mesne profits, after the 13th of February they could not have so brought their suit until the 11th of September 1905, because the sale had been upheld by the Court and the learned Vakil asked us, to use his own expression, to deduct from the period of limitation that period of time from the 13th of February 903 to the 11th of September 1905. In my judgment we cannot do that. We have to apply the Limitation Act as it stands, and the limitation provided by Article 109 is to the effect that the period of limitation begins to run from the time when the profits are received, and for that reason I think the second point which was raised by the learned Vakil is not a good point.
12. The third point which the learned Vakil raised was that usually the mesne profits could not be ascertained until the end of the Amli year and that consequently the liability for such mesne profits would not begin until the end of the Amli year. The result of that argument, if it was upheld, would be that the plaintiffs would be entitled to mesne profits not only for the year 1312, which was admitted by the learned Vakil for the appellant, but also for the year 1311. In my judgment we have nothing to do with that on this occasion, and as 1 have said we have to apply Article 109: All we can say is that the plaintiffs are only entitled to recover rents and profits which the defendant had received and which without wilful default he might have received between the 16th of September 1904 and the date of the suit (the 16th of September 1907). Consequently the judgment of the learned Subordinate Judge ought to be varied in the way I have indicated in my judgment, and the enquiry by the Commissioner directed by the learned Subordinate Judge's judgment ought to take place upon that basis forthwith.
13. The appeal is allowed with costs both of the hearing before Mr. Justice Doss and Mr. Justice Richardson as well as before us.
14. The appellant must pay the pro forma defendants three gold mohurs as their costs in this Court.
15. I agree.
16. I agree.