1. The question arising on this second appeal, in which the plaintiff is the appellant, is whether the rejection of an application for the assessment of mesne profits debars a farther application for assessment being made. The District Judge of the 24-Pargannas, reversing the decision of the Munsif, had held that rejection of such an application debars any subsequent application as the rejection has the effect of dismissing the suit, and he relies for this upon the authority of Upendra Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 3.
2. The material facts are as follows: The suit was filed on the 1st February 1934 claiming possession of certain lands and Wasilat at the rate of Rs. 30 per annum or at such rate as the Court should direct. On the 23rd June 1904 the suit was decreed and it was directed that the amount of mesne profits should be ascertained in the execution department. The decree was affirmed on appeal on the 11th September 1905. On the 8th September 1908 the plaintiff applied for the assessment of the mesne profits awarded him by the decree, but the application was rejected on the 28th November 1908 as frivolous as the petition was not accompanied by a copy of the decree and the basis upon which mesne profits were to be assessed was not stated. On the 27th November 1911 the heirs of the original plaintiff made a second application for the assessment of mesne profits, which is the subject of this appeal. It follows that if the rejection of the application on the 28th November 1903 was only an application in execution, the application of the 27th November 1911 is not barred, if on the Other hand the rejection amounted to a dismissal of the suit, then there was no pending suit at the time of the application of the 29th November 1911.
3. The decisions of this Court upon the question appear to conflict. In Ram Kishore Ghose V. Gopi Kanta Shaha 28 C. 242 the respondents obtained a decree for possession of certain lands with mesne profits on the 31st December 1889, which 'was confirmed on appeal on the 23rd January 1894. On the 22nd April 1895 the respondents in execution of the decree obtained possession and the execution proceedings were dismissed. They next applied in execution for realization of costs and determination of mesne profits and on the 21st November 1896 the costs were realized and the execution proceedings struck off. On the 28th January 1898 the respondents applied for assessment of mesne profits by deputing an Amin, and it was held that the application was competent as applications to determine mesne profits are to he treated as applications for execution of the decree and that the striking off of such applications did not finally decide them or prevent a decree-holder from making a further application for the determination of mesne profits. Reliance was placed on a principle laid down in Raiah Muhesh Narain Singh v. Kishanund Misr 9 M.I.A. 324 : 2 Ind. Jur. (O.S.) 1 : 5 W.R.P.C. 7 : Marsh. 592 : 1 Suth. P.C.J. 488 : 1 Sar. P.C.J. 862 : 19 E.R. 764, namely, that when the execution of a final decree in a suit fails or is set aside and the proceedings with regard to execution are taken off the file, the whole suit is not thereby discontinued. In the coarse of the judgment reference was made to a Fall Bench case of Puran Chani v. Roy Radha Kissen 4 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534, which is considered later in this judgment. In Upendra, Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 3 another Bench of this Court held that the dismissal for default of an application to ascertain mesne profits was equivalent to a dismissal of the claim for mesne profits and that a fresh application in the same matter was not admissible. The Bench, however, revived an application for restoration of the suit which had been abandoned and restored the suit and directed the application for mesne profits to be considered on its merits. The decision was based upon Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534 and Ram Kishore Ghose v. Gopi Kanta Shaha 28 C. 242 was distinguished or if indistinguishable, was treated as not binding in view of the decision in Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534.
4. The question referred to the Full Bench in that case was, as stated in Ram Kishore Ghose v. Gopi Kanta Shaha 28 C. 242, whether an application to ascertain the amount of mesne profits awarded by a decree in accordance with the provisions of Section 211 or 212 of the Code of Civil Procedure (Act XIV of 1882) was as regards limitation governed by Article 178 or by Article 179 of the Limitation Act. The referring Judges state in the order of reference that their opinion was that the intention of the Legislature was that an application to as certain the amount of mesne profits was to be deemed to be an application in execution of the decree. In the result the Full Bench decided that neither Article 178 or Article 179 applied, and at page 136 Pages of 19 C.--Ed. they state: 'The proceedings, therefore, in determining the amount of Wasilat are not proceedings in execution of a decree, in regard to any fixed sum, but merely a continuation of the original suit and carried on in the same way as if a single suit was brought for mesne profits by itself'; and at page 137 Pages of 19 C.--Ed. they say: 'We must, therefore, take it as settled law, so far as this Court is concerned, that an order and decree in this case referring to mesne profits is in the nature of an interlocutory order, and that there is nothing that can be executed under Section 255 of the Code until the actual amount of mesne profits has been found and determined.'
5. In the result I think that the view of the decision in Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) : 9 Ind. Dec. (N.S.) 534 taken by the Bench which decided Upendra Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 3 was correct and that the scope and effect of the Full Bench decision was not correctly apprehended by the Bench which decided Ram Kishore Ghose v. Gopi Kanta Shaha 28 C. 242. One further question arises on the appeal, namely, whether rejection of the application of the 8th September 1908 has the same effect as a dismissal. The learned Munsif has held that it has not and on this ground has distinguished the decision in Upendra Chandra Singh v. Sakhi Chand 15 Ind. Cas. 709 : 16 C.L.J. 2. He says that the application was rejected as being defective in form and that it was not dismissed. The District Judge on the other hand thinks that rejection has the same effect as dismissal. I am not prepared to say that the District Judge is wrong in so holding. In the result the appeal fails and must be dismissed with costs.
6. I agree.