Authored By : B.K. Mullick, Atkinson

B.K. Mullick, J.

1. On the 22nd March 1909, plaintiffs got a decree for recovery of possession of some immoveable property. In pursuance of that decree they took possession on the 24th September 1910. The defendant appealed against that decree to the High Court and succeeded in getting it reversed on the 4th June 1913. The defendant then took possession of the property on the 4th of December 1913. On the 2nd of June 1916 the defendant applied, under section 144 of the Civil Procedure Code, for restitution of mesne profits in respect of the property for the period during which the plaintiffs were in possession, namely, from the 24th September 1910 till the 4th December 1913.

2. The learned Subordinate Judge has held that inasmuch as the defendant in applying for restitution of the property did not apply for restitution of mesne profits, he is now debarred from claiming mesne profits by reason of the provisions of Order II, rule 2, of the Civil Procedure Code. His view is that when the defendant took possession on the 4th December 1913, he should have insisted upon his right to restitution of mesne profits also and having declined to claim that relief at that time he is, according to the principles of constructive res judicata, no longer competent to claim it by a subsequent proceeding under section 144. The learned Subordinate Judge has accordingly dismissed the defendant's application and against that order, which is a decree under the definition of decree contained in section 2 of the Civil Procedure Code, the defendant prefers the present appeal before us.

3. In our opinion the learned Subordinate Judge's order cannot be maintained. It is conceded by the learned Vakil, who appears on behalf of plaintiffs before us, that a proceeding, under section 144 of the Civil Procedure Code, is not a proceeding in execution. This must clearly be so, because the relief which the defendant claims in the present proceeding is not a relief founded upon any decree giving him such relief. It is a relief which used to be granted previous to 1859 under the inherent powers of the Court and which in the subsequent Civil Procedure Codes has been recognised by express statutory provision. The Code of 1882 prescribes it in section 583 and the present Code of 1908 reproduces substantially the provisions of that section in section 144. The proceeding in which the relief is claimed is neither a suit nor an execution proceeding, it is a miscellaneous proceeding to which the rules applicable to execution proceedings do in substance apply. In this connection it is to be noticed that section 583 of the Code of 1882 contains words expressly prescribing that the Court in proceeding to grant relief under that section is to proceed according to the rules prescribed for the execution of decrees in suits. That Code nowhere stated that the proceeding was an execution proceeding, nor does the present Code prescribe anything to this effect. Although the words above referred to have been omitted from section 144 of the present Code, the law in this respect is still substantially the same. Therefore the question arises whether section 141 of the present Code requires that all the provisions of the Civil Procedure Code and therefore also of Order II, rule 2, should be applied to the miscellaneous proceeding before us.

4. In my opinion the answer is in the negative. It has been held in Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 ; 41 C 1; 18 C.W.N. 343, following a decision of their Lordships of the Privy Council in Thakur Prasad v. Fakir-ullah 17 A (sic) M.L.J. 3; 22 I.A. 44; 6 Sar. P.C.J. 526; 8 Ind. Dec. (N.S.) 393, that section 141 is not applicable to an execution proceeding. And if it is not applicable to an execution proceeding, I fail to see why it should be made applicable to a proceeding which is only of the nature of an execution proceeding.

5. The learned Vakil for the respondents has strenuously contended that though the proceeding is miscellaneous it is in the nature of an original suit. In my opinion this argument fails, for a suit must always be based on a cause of action. Here the defendant petitioner has no cause of action on which he can claim relief from the plaintiffs. If it is urged that the cause of action is a trespass, then the reply is that the plaintiffs were put in possession by a decree of Court and were not trespassers. Nor does the decree of the Appellate Court per se constitute a cause of action. In my opinion the defendant had no cause of action on which he could have based a suit against the plaintiffs, even if the law had not expressly forbidden him to proceed by suit. His only remedy was to apply to the Court to proceed against the plaintiffs in exercise of its special powers. Therefore the rule applicable to several reliefs arising out of the same cause of action cannot be applied here. Finally, even if we were to accede to the learned Vakil's argument that this proceeding is a suit, in my opinion the claim for mesne profits cannot be said to arise from the same cause of action as a claim for recovery of possession and, therefore, Order II, rule 2, is no bar.

6. We are fortified in the view we take by Somasundaram Pillai v. Chokkalinga Pillai 38 Ind. Cas. 806; 40 M. 780; 5 L.W. 267. In that case their Lordships of the Madras High Court, following a previous decision of their own, expressly held that Order II, rule 2, of the present Civil Procedure Code does not cover restitution applications.

7. Therefore, the result is that the learned Subordinate Judge's order holding that the defendant's application was barred by reason of Order II, rule 2, must be set aside.

8. The learned Vakil for the respondents has taken another ground before us, namely, limitation. The learned Subordinate Judge has not gone into this point, but as it has been taken by the learned Vakil and argued, we will proceed to give our decision on it, which will be binding on the parties.

9. The learned Vakil contends that the Article applicable to this case is Article (sic) of the Limitation Act of 1908, Schedule I, and that as the defendant made his application for restitution on the 2nd June 1916, he can only obtain as mesne profits that amount which became due within three years from that date. In that case the defendant would be entitled only to mesne profits from the 3rd June 1918 to the 4th December 1918. Now Article 181, which is admittedly the Article applicable to the present proceeding, prescribes that the period of limitation for making an application for restitution shall be three years from the date when the right to apply accrued. Here the right to apply accrued on the date of the High Court judgment, namely, 4th June 1913, and the application for restitution, having been made on the 2nd June 1916, was within three years of that date and, therefore, was within time. But Article 181 does not in any way control the period during which the mesne profits shall be allowed to accumulate and whatever the number of years during which the plaintiffs were in possession, the defendant was entitled to be compensated in respect of the whole of that period provided he applied within three years of the date on which the right to relief accrued. Here the defendant will be entitled to such mesne profits as the Subordinate Judge may find to be due for the period from the 4th September 1910 to the 4th December (sic). The result is that the case will go hack to the learned Subordinate Judge in order that it may be decided according to law. The appeal is allowed with costs.

Atkinson, J.

10. I agree.