[This Second Appeal first came on for hearing on the 2nd day of may 1917 before their Lordships Sadasiva Aiyar and Spencer, JJ.]

This is a suit for mesne profits. The plaintiffs brought a previous suit (O. S. No. 288 of 1909) for partition of family property including a prayer for mesne profits.

They obtained a decree directing a division to be made into five equal shares and awarding Rs. 108 for past mesne profits. The judgment was silent on the subject of future mesne profits.

In the present suit the District Munsif gave the plaintiffs a decree for the recovery of Rs. 254-8-0 mesne profits accruing after the institution of O. S. No. 288 of 1909, but on appeal, the Subordinate Judge dismissed the suit with the remark that although his decision might seem hard, he was bound by the ruling in Ramasami Iyer v. Srirangaraja lyengar (2 L.W., 8) to hold that no separate suit could be brought for mesne profits claimed in a previous suit as the matter was res judicata by reason of the former decision.

Under the Code of 1882 it was well settled by a Full Bench decision of this Court, Kuppusamy Aiyar v. Venkataramier (15 M.L.J., 462), that such a suit would lie. The same principle was upheld in Calcutta in Mon Mohun Sirkar v. The Secretary of State for India in Council (I.L.R., 17 Cal., 968), (see the observations of Ameer Ali, J., at pages 970 and 971 on the discretionary form of Sect. 211 of the Code of Civil Procedure, 1882). It was also decided by another Full Bench that claims for possession and claims for mesne profits form separate causes of action under the old Code and under the new Code ( vide Ponnammal v. Ramamirda Aiyar (I.L.R., 38 Mad., 829) [LQ/MadHC/1914/381] .

The learned Judges who decided 2 L. W., 8 base their opinion on the change of language in the Code of 1908. They say that in this Code, Sect. 211 of the Code of 1882 disappears altogether, and, as O. 20, R. 12, now reads, it is made equally a matter of discretion with Courts to direct an enquiry into future mesne profits as it is to pass a decree for possession or for future mesne profits.

With due respect to those learned Judges, we are unable to see that there has been any substantial change of language. Sect. 211 has not disappeared, but combined with Sect. 212, it has been recast into O. 20, R. 12.

Sect. 211 declared the Court may provide in the decree for the payment of future mesne profits. O. 20 R. 12 (1) ( c ) declares that the Court may pass a decree.. directing an enquiry as to rent or future mesne profits.

Sect. 212 permitted the Court either to determine the amount of past mesne profits by the decree itself or to pass a decree for the property and direct an enquiry into the amount of mesne profits. O. 20, R. 12 (1) ( a ) ( b ), is to the same effect. The only essential in procedure is that under the new Code mesne profits are not to be left to be determined in execution.

A more important change and one to which the judgment in 2 L. W., 8 contains no allusion, is the omission of the proviso to Sect. 244 from Sect. 47 of the new Code. This ran as follows:Nothing in this section shall be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree therein where such profits are not dealt with by such decree.

It may be that these words were omitted because they were considered superfluous. Similarly a provision that a claim for the recovery of land and a claim from mesne profits from such land should be deemed to be distinct causes of action, found place in the Code of 1859 but dropped out of the Code of 1882 for the reason that it became superfluous, as explained in I. L. R. 38 Mad., 829 [LQ/MadHC/1914/381] but this did not prevent the Court from arriving at a conclusion that such claims constitute separate causes of action in the present state of the law.

The use of the word may in O. 20, R. 12, like the same word in the old Sect. 211, seems to indicate that it is discretionary with the Court to award future mesne profits. The plaintiff could not insist on them being granted to him because at the date of the first suit the cause of action for mesne profits is not Completed. In this connection the use of the word shall in O. 20, R. 16, which deals with suits for accounts may be compared with the use of the word may in O. 20, R. 12.

As regards the question of res judicata , Sect. 11, explanation 5, declares that any relief claimed in the plaint, which, is not expressly granted by the decree, shall be, for the purposes of this section, deemed to have been refused. But if mesne profits were claimed in the first suit and through mistake or oversight they were neither granted nor refused, the section will not prevent a second suit being instituted for their recovery, when the relief claimed in the plaint is a relief which the Court was not bound to grant if the defence failed. This is made clear in 15 M. L. J., 462.

The case in 2 L. W., 8 has since been followed in C. R. P., No. 858 of 1913 (unreported, but one of the two learned Judges who decided it was party one and half months later to Thavasi v. Arumugam, ([1915] M.W.N., 170) which followed 15 M. L. J., 462 without referring to the more recent decision under the Code of 1908. The other learned Judge was a party to the Full Bench in I. L. R., 38 Mad., 829 [LQ/MadHC/1914/381] which proceeds on considerations not easily reconcilable with those upon which 2 L. W., 8 was decided.

We are inclined to the opinion that 2 L. W., 8 was wrongly decided and requires reconsideration and as the question involved is of considerable importance and of frequent occurrence, we refer to the decision of a Full Bench the question whether after a suit for possession of lands and mesne profits past and future has been brought and decided and a decree has been obtained for possession and past mesne profits without the claim to future mesne profits being decided, a second suit will lie to recover mesne profits from the institution of the first suit till delivery of possession.

[1] I agree with the referring Judges. Explanation V to Section 11 of the present Code of Civil Procedure is in exactly the same terms as the corresponding explanation III to Section 13 in the Code of 188

2. Under the Code of 1882 it was held by a Pull Bench of this Court in Kuppusamy Aiyar v. Venkataramier (1908) 15 M.L.J. 462 in conformity with the decisions of other High Courts that the word "relief" in the explanation means relief arising out of a cause of action which had accrued at the dale of suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to Rebut this presumption in the fact that Sections 211 and 212 of the old Code were amalgamated to form Order 20, Rule 1

2. The change introduced by the new rule is that the award of mesne profits in all cases is to be by preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution. This change does not appear to me to affect the construction of explanation V to Section 11, nor do I think is effected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code. I answer the question in the affirmative.

Ayling, J.

[2] I regret that I am unable to concur. The point referred is identical with that considered by Hannay, J. arid myself in Ramasami Aiyar v. Sri Rangaraja Aiyangar (1914) 2 L.W 8 and with all respect after hearing it reargued I remain of the same opinion.

[3] I would answer the question in the negative.

Kumaraswami Sastri, J.

[4] The question referred to us for decision is. "whether after a suit for possession of lands and mesne profits past and future has been brought and decided and a decree has been obtained for possession and past mesne profits without the claim to future mesne profits being decided, a second suit will lie to recover mesne profits from the institution of the first suit till delivery of possession".

[5] I agree with the Chief Justice whose Judgment I have had the advantage of perusing and with Sadasiva Aiyar and Spencer, JJ., the referring Judges that the question should be answered in the affirmative.

[6] As there has been no adjudication as to future mesne profits the second suit can only be barred if it can be brought under explanation V to Section 11, Civil Procedure Code, 1908. It is now well settled that the word relief in explanation V mear a relief which the plaintiff can claim as a matter of right in respect of a cause of action which has accrued to him at the date of suit and that relief in respect of future mesne profits is not claimable as a matter of right no cause of action accruing to the plaintiff at the date of suit in respect of the future injury he might suffer if the defendant continues to be in wrongful possession in spite of the suit and that explanation III of Section 13 of the Code of 1882 which is the same as explanation V of Section 11 of the Code of 1908 will not bar a second suit. Mon Mohun Sircar v. The Secretary of State for India in Council (1890) I.L.R. 17 C. 968 Jiban Das Oswal v. Durga Pershad Adhikari (1898) I.L.R 21 C. 252 Bhivrav v. Sitaram (1894) I.L.R. 19 B. 532 Ram Dayal v. Madan Mohan Lal (1899) I.L.R. 21 A. 425 and Kuppusawmy Aiyar v. Venkatramier (1903) 15 M.L.J. 462.

[7] There is nothing in the present Code that alters the nature of the claim for future mesne profits. It is still a claim in respect of a cause of action that has not accrued to the plaintiff at the date of suit and it cannot be contended after the recent decision of the, Full Bench in Ponnammal v. Ramamirtha Aiyar (1914) I.L.R. 38 M. 829 : 28 M.L.J. 12

7. (F.B.) that if the plaintiff had omitted to ask for the relief in his plaint a separate suit would be barred.

[8] The main contention for the respondents is that Order 20, Rule 12 has now rendered it obligatory on the Court to pass a decree as to mesne profits from date of suit to date of delivery of possession if the plaintiff makes out a claim for such relief and that consequently the decisions under the Code of 1882 have no application.

[9] I do not think that the Code of 1908 which enacts as Order 20, Rule 12 what was contained in Sections 21l and 212 of the Code of 1882 has made any material alteration in the nature of the claim as to future mesne" profits. Rule 12 provides that the Court may pass (1) a decree for possession of the property (2) a decree for rent or mesne profits up to suit or direct an enquiry as to the same and may (8) direct an enquiry as to future mesne profits. It provides for a final decree being passed after the enquiry directed is made and the liability ascertained. So far as Clause (c) of Order 12 is concerned the power of the Court is still discretionary as all the Order does is to provide that the Court may pass a decree directing an enquiry as to rent or mesne profits from the institution of the suit till the period provided for by Clauses (i), (ii), and (iii). It has been argued that even as regards Clauses (a) and (b) the word used is " may " and not " shall " though the Court is bound to pass a decree in terms of Clauses (a) and (b) if plaintiff s claim is established. Section 212 of the old Code provides that the Court may either determine the amount by the decree itself or may pass a decree for the property and direct an enquiry into mesne profits and dispose of the same on further orders and the legislature in including in one section what was embodied in two by using the word may which occurred in both the sections cannot be said to have introduced any new principle as regards future mesne profits. When different claims are dealt with in one rule under various sub-sections the fact that the word may should be construed as shall in respect of one of the sub-sections owing to nature of the claim which it deals with does not necessarily mean that the word cannot be construed in its ordinary sense as regards other clauses. With all respect I am unable to agree with the decision in Ramaswamy Aiyar v. Sri Ranga Raja Aiyangar (1914) 2 L.W. 8 that the grouping into one section of past and future mesne profits affects the nature of future mesne profits so as to attract to it the provisions of explanation V to Section 1

1. The omission of the proviso to Section 244 in Section 47 of the Code of 1908 is due to the fact that under the Code of 1908 the determination of questions as to mesne profits was to be in the suit itself and not subsequent to decree in execution proceedings. Under the scheme of the present Code there is no necessity for any such proviso to Section 47 which corresponds to Section 244 of the old Code.

[10] There being in my opinion no material difference between Section 211 of the old Code and Rule 12 Clause (c) of Order 20 of the present Code there is no reason for departing from the decisions of this and the other High Courts as to the second suit not being barred by explanation V of Section 11 of the Code.