Jwala Prasad, A.C.J.

1. Both these appeals arise out of the same decision of the court below, dated the 8th September 1921. By this decision the court below has ascertained the mesne profits awarded to the plaintiff in a suit for possession. The original decree passed by the trial Court was dated the 29th August, 1911. That decree was in favour of the plaintiffs Nos. 1 and 2. On appeal to the lower appellate court the decree was set aside so far as the plaintiff No. 1 was concerned and was upheld in favour of the plaintiff No. 2. That decree is dated the 6th May, 1912. It was upheld by the High Court on the 7th January 1916. The decree directed delivery of possession to the plaintiff No. 2 and mesne profits under Order 20, Rule 12(1) of the Civil Procedure Code. An application for execution of the decree was made on the 23rd December, 1918, and the plaintiff opposite party got delivery of possession on the 14th February, 1919. On the 19th July, 1919, he applied to the court which passed the decree for ascertainment of mesne profits and to make the decree final under Order 20, Rule 12 of the Civil Procedure Code. This was done by the decision of the Munsiff passed on the 9th March, 1920.

2. Against that decision both the plaintiff and the defendants filed separate appeals in the court below. These appeals were disposed of by the Subordinate Judge on the 8th September, 1921.

3. The defendant alone has now appealed from the decision of the Subordinate Judge and as there were two appeals in the court below he has filed two second appeals in this Court but the points raised are the same in both the appeals.

4. The first question raised on behalf of the defendant-app3llant is that the application for ascertainment of mesne profits was barred by limitation. His contention is that such an application should have been made within three years from the date of the final judgment in original suit, namely, on the 7th January, 1916, passed by the High Court. The contention is that an application for ascertainment of mesne profits is governed by Article 181 of the Limitation Act. In support of this contention reliance has been placed upon the case of Gangadhar v. Balakrishna (1921) 45 Bom. 819, a case of the Bombay High Court and the case of R. Ramema Reddi v. R. Babu Reddi (1912) 37 Mad. 186. Both these cases relate to decrees passed before the present CPC and in both of them the direction in the decree was that the mesne profits should be ascertained in execution. Full Bench of the Calcutta High Court however took a contrary view in the case of Puran Chand v. Roy Radha Kishen (1892) 19 Cal. 132 holding that Articles 178 and 179 of the old Limitation Act (corresponding to Articles 181 and 182 of the present Limitation Act) do not apply to applications for ascertainment of mesne profits. This case also was with respect to a decree prior to the passing of the present Code of Civil Procedure. There was therefore divergence of opinion between the High Courts upon this point and the present CPC has tried to solve it by making the ascertainment of mesne profits a part of the suit and in continuation thereof. No longer is such a proceeding a separate proceeding and an application for ascertainment of mesne profits is no longer an application in execution. Under the present Code the case of Gangadhar Marwari v. Lachman Singh (1910) Cri.L.J. 541 is to the effect that the right to apply for ascertainment of mesne profits does not arise until the delivery of possession. This is an authority under the present Code and seems to apply to the present case. Mr. Ray disputes the correctness of that authority. Whereas I am not prepared to hold that in all cases the right to apply for ascertainment of mesne profits arises from the date of delivery of possession, I think that the right to apply does not in any case arise from the date of the decree. Order 20, Rule 12 requires that the decree shall direct an enquiry to be made for the ascertainment of rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor or the expiration of three years from the date of the decree, whichever event first occurs. Therefore the decree has to direct an enquiry with respect to mesne profits for a period subsequent to the date of the decree, the limit being three years from the date thereof and until the period for which the mesne profits are to be awarded under the decree expires, the decree-holder will not be entitled to apply for ascertainment of the mesne profits. It is obvious that mesne profits for a period cannot be ascertained until it has already expired. Therefore the right to apply will arise either when the delivery of possession is actually given or three years expire from the date of preliminary decree. The decree in the present case has not been filed and therefore we do not know up to what future period the mesne profits has been directed to be given, but we know that the plaintiff got delivery of possession on the 14th February, 1919. The three years from the date of the High Court decree expired on the 7th January, 1919. The application for ascertaining mesne profits was made on the 19th July, 1919. Hence whether the right to apply accrued on the 14th February, 1.919, the date of the delivery of possession or on the 7th January 1919, the date on which three years from the decree expired, the application was not barred by limitation. Therefore this contention of the appellant must fail.

5. The other points are so unsubstantial that they do not require any discussion. The first is that the decree-holder should get interest on mesne profits up to 1916 only. There is nothing on the record to show that there has been a miscalculation or mis-ascertainment of mesne profits. The second is that interest should have been allowed only up to the 7th January, 1916, and not up to the date of the judgment of the first court, that is up to the 29th March, 1921. Mesne profits now include interest, so the decree-holder is entitled to interest up to the date of realisation of the mesne profits. The court below is therefore right in allowing interest and in holding that the interest should have been calculated up to the date of the final decree of the court below. The result is that these appeals are dismissed with costs.

Kulwant Sahay, J.

6. I agree.