1. This is a rule on the opposite party to show cause why the decree of the lower Court complained of in this petition should not be set aside on the ground that the claim for mesne profits is barred under Section 43 of the Code of Civil Procedure. It appears that one Mohesh Ram Pal instituted a suit against the petitioner and others in the Court of the First Sudder Munsif of Sylhet for specific performance of a contract to reconvey a plot of land to him by executing a kobala in his favour. The suit was decreed ex parte against the petitioner and others on the 20th November 1905, and it was ordered by the Court that the defendants do reconvey the property in dispute to the plaintiff and register the kobala. One month's time was allowed by the Court for the execution of the kobala. It also appears that after the said decree the plaintiff, Mohesh Ram Pal, did not apply for execution for two years and a-half after the passing of that decree. The plaintiff, Mohesh Ram, again brought a suit in the Small Cause Court on the 4th March, 1908, for damages or mesne profits against the petitioner and others for the years 1311 to 1314, and on the 29th February 1908, the plaintiff obtained a decree for Rs. 72-8 with costs Rs. 11-8 against which the defendant on application to this Court obtained this rule.
2. So far as the mesne profits or damages that accrued after the institution of the former suit are concerned, it is evident that the suit is not barred. But as regards the damages for 1311 which accrued before the institution of that suit it is, contended on behalf of the petitioner that inasmuch as the cause of action is really one, namely, the breach of the contract, the opposite party was not entitled to bring a separate suit for damages or mesne profits. It is also contended that if the petitioner had performed the contract there would have been no claim against him either for damages or for mesne profits. Our attention has been drawn to many authorities of this Court and other Courts in support of the petitioner's contention. Most of those cases relate to suits on mortgage, and the circumstances of those cases are different from those of the present case.
3. But we think that in. this case there is really but one cause of action, namely, the breach of the contract. We are supported in our view by Section 19 of the Specific Relief Act, which lays down that, 'if in any suit the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case and that some compensation for breach of contract should also be made to the plaintiff, it shall award him such compensation accordingly.' III. (2) of this section makes the meaning of this provision still more clear. It is clear, therefore, that in a case of this nature even if the plaintiff does not claim any compensation for breach of the contract, the Court may under the provisions of that section give him a decree not only for the performance of the contract but also for compensation for the breach.
4. Under these circumstances we are of opinion that Section 43 of the Code of Civil Procedure is a bar to the suit of the plaintiff for compensation so far as it related to 1311. We, therefore, make the Rule absolute to that extent.
5. The petitioner is entitled to his costs in this rule which we assess at one gold mohur.