1. This is an appeal against the decision of the Subordinate Judge of Bogra remanding a case for assessment of mesne profits.
2. The question that arises in this appeal is whether any appeal lay to the Subordinate Judge in this matter. The plaintiffs-respondents brought a suit for declaration of their raiyati right to an eight-annas odd share in a certain holding alleging that they were purchasers from some of the heirs of one Sona. In that suit heirs of Sona were made defendants and also one Baso and defendants Nos. 6 to 12, the present appellants, were joined as being in possession of the land. Their pleas were that they were burgadars of some plots under Baso and also mortgagers of Baso in respect of some plots. The suit was dismissed by the Court of first instance. On appeal that decision was reversed and the suit decreed, The plaintiffs' title to the share claimed was declared and they were granted a decree for possession after partition. It is also directed that defendants Nos. 6 to 12 would not be ejected from the land and that the decree in the suit would in no way prejudice the mortgage right, if any, of these defendants.
3. The case was then sent back to the lower Court for partition and determination of the amount of mesne profits. When the case came back before the Munsif's Court the plaintiffs gave up their right to partition. On the 9th January 1919 an objection was taken by defendants Nos. 6 to 12, the present appellants, that they were not liable for mesne profits. That objection was heard in the presence of the parties and the Munsif held that the order of the Subordinate Judge remanding the case did not include defendants Nos. 6 to 12 and absolved them from the liability of paying the mesne profits. He ordered accordingly that the mesne profits against the remaining defendant should be ascertained and a Commissioner was appointed for this purpose. On the 7th April 1919 after the Commissioners' report had been received the Munsif finally disposed of the case and passed an order dismissing the claim for mesne profits as against defendants Nos. 6 to 12 on contest and dismissing it as against the other defendants for non-prosecution.
4. The contention on behalf of the appellants is that the order of the 9th January was a decree against which an appeal should have been preferred, and that no appeal having been preferred against that order it had become final before the appeal was presented to the lower Appellate Court. In my opinion that contention must be upheld. The order of the 9th January definitely determined that these defendants were not liable for mesne profits. In the case of Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1) it was held by the Judicial Committee of the Privy Council that an order deciding the period for which mesne profits could be recovered was a decree within the meaning of the definition in Section 2 of the Code of Civil Procedure then in force. Since then there has been an alteration of the definition of the decree in the Code of 1908. But the alteration is to make it wider than before. The order now under consideration was an order finally deciding that these defendants were not liable for any mesne profits. That appears to me to be as mush a final adjudication as the order which was considered by the Judicial Committee in the case to which I have referred.
5. Taking this view this appeal must be decreed on the preliminary point raised and it is unnecessary to consider the lower Appellate Court's order on its merits.
6. Accordingly I decree this appeal, set aside the order of the lower Appellate Court and restore the decree of the Court of first instance, The appellants will get their costs in this and lower Appellate Court.