Authored By : William Comer Petheram, Henry Thoby Princep,James Quain Pigot, O Kinealy, S.C. Ghose

William Comer Petheram, C.J., Henry Thoby Princep, JamesQuain Pigot, O Kinealy and S.C. Ghose, JJ.

1. It appears that the appellants in this case obtained adecree on the 31st May 1884 for possession of certain lands, with a directionthat the amount of mesne profits should be ascertained in execution of thedecree. An application for execution was made on the 22nd June 1886 in regardto the Immovable property. It was renewed on the 27th May 1887, and on the 17thof August of that year, possession of the real property was delivered to theappellants. The costs of the suit were also realized. In the applications ofJune 1886 and May 1887, the appellants also asked that the mesne profits mightbe ascertained according to the direction in the decree. Another application tothe same effect was made on the 3rd August 1889 and was met by the objectionthat no mesne profits had been awarded by the decree. This objection wasoverruled, and, on the 19th July 1890, the decree-holders applied to have themesne profits ascertained. The judgment-debtor then objected that theapplication was barred, and, in support of that objection, he cited the case ofAnando Kishore Dass Bakshi v. Anando Kishore Bose I.L.R. Cal. 50 which decidedthat all applications of that nature fell within Article 178, Schedule II ofthe Limitation Act, and were barred if not made within three years from thedelivery of possession of the lands decreed. This objection was overruled bythe first Court, but was given effect to in the Court of First Appeal. Theappellants, dissatisfied with that decision, brought a second appeal in thisCourt, and the Judges of the Divisional Bench who heard the appeal, dissentingfrom the decision already referred to, referred the following question for thedecision of a Full Bench: "Whether an application to ascertain the amountof mesne profits awarded by a decree in accordance with the provisions ofSections 211 or 212 of the Code of Civil Procedure is, as regards limitation,to be governed by Article 178 or by Article 179 of the Limitation Act"

2. Sections 211 and 212 of the present Procedure Codecorrespond to Sections 196 and 197 of Act VIII of 1859. In order to determinethe question referred to the Full Bench, we must first consider the form of theorder. No time is stated in the order as to the period for which mesne profitsshould be calculated; but, in the subsequent applications for mesne profitsmade by the appellants, the order was always treated as an order for mesneprofits from the date of suit to the date of obtaining possession. This view ofthe order may be supported by the judgment of their Lordships of the PrivyCouncil in the case of Fakharuddin Mahomed Ahsan Chowdhry v. The OfficialTrustee of Bengal L.R. 8 I. A. 197. We shall therefore take it, for thepurposes of the decision of this case, that the meaning of the present orderregarding wasilut is that wasilut should be calculated from the institution ofthe suit to the date of obtaining possession. The object of the Legislature inenacting Section 211 appears to have been the prevention of unnecessarylitigation and multiplicity of suits, and for this purpose they empowered theCourts to give, with the possession of the real property such wasilut as theythought the plaintiff would be entitled to by law. The proceedings, therefore,in determining the amount of wasilut are not proceedings in execution of adecree in regard to any fixed sum, but merely a continuation of the originalsuit and carried on in the same way as if a single suit were brought for mesneprofits by itself. This has been the view accepted by this High Court in thecases of Fuzeelun v. Syud Keramat Hossein 21 W.R. 212 Bunsse Singh v. MirzaNuzuf Ali Beg 22 W.R. 328 Dildar Hossein v. Mujeedunnissa I.L.R. Cal. 629 andAnundo Kishore Dass Bakshi v. Anando Kishore Bose I.L.R. Cal. 50. We musttherefore take it as settled law, so far as this Court is concerned, that anorder and decree in this case referring to mesne profits is in the nature of aninterlocutory order, and that there is nothing that can be executed underSection 255 of the Code until the actual amount of mesne profits has been foundand determined--Radha Prasad Singh v. Lal Sahab Rai 11. L.R. 13 All. 53 (65).

3. Nor is the question, if any, and, if so what limitationapplies to applications to have mesne profits assessed, devoid of authority. Inthe case of Fuzeelun v. Syud Keramut Hossein 21 W.R. 212 it was argued thatapplications asking the Court to assess mesne profits were governed by Section20 of Act XIV of 1859 which was the Limitation Act then in force. That sectionran as follows: "No process of execution shall issue from any Court notestablished by Royal Charter to enforce any judgment, decree, or order of suchCourt, unless some proceeding shall have been taken to enforce such judgment,decree, or order, or to keep the same in force within three years nextpreceding the application for such execution."

4. That contention was overruled, and it was decided thatthere was no bar to proceedings for assessment of mesne profits arising out ofthe Limitation Act. This decision was followed in the case of Bunsee Singh v.Mirza Nuzuf Ali Beg 22 W.R. 328 and this latter decision was approved of in thecase of Dildar Hossein v. Mujeedunnissa I.L.R. Cal. 629; and made applicable todecrees passed under Section 197 of Act VIII of 1859 which corresponds toSection 212 of the present Code. Thus it is clear that the view which prevailedtill the decision of the case of Anundo Kishore Dass Bakshi v. Anundo KishoreBose I.L.R. Cal. 50 was that proceedings under Sections 196 and 197 of Act VIIIof 1859 were proceedings similar to those in a regular suit not governed by theLimitation Act at all, although it had been argued that Section 20 of that Act,which more or less corresponds with Article of the present Limitation Act,applied. The case of Anundo Kishore Dass Bakshi v. Anundo Kishore Bose I.L.R.Cal. 50 was one under the present Civil Procedure Code, and the Judges whodecided it in no way dissented from the opinion of the previous Courts in sofar as Article 179 of the Limitation Act was concerned; but, dissenting fromthe decision in the case of Baroda Sundari Dabia v. Fergusson 11 C.L.R. 17 theydecided that Article 178 of Schedule II of the Limitation Act applied toapplications under Section 211 of the Code. Article 178 runs as follows: "Applicationsfor which no period of limitation is provided elsewhere in this schedule, or bythe Code of Civil Procedure, Section 230,--three years from the time when theright to apply accrues."

5. In the case of Govind Chunder Goswami v. RungunmoneyI.L.R. Cal. 60 it was pointed out that where general words are used, thosewords must be construed with some limitation; that the article was not intendedto govern applications for transfer of cases from one Court to another or totransfer a case to the bottom of the board, or to applications for change ofattorneys or other applications of that nature. The same principle was laiddown in the case of Kylasa Goundan v. Ramasami Ayyan I.L.R. Mad. 172 and VithalJanardan v. Vithojirav Putlajirav I.L.R. 6 Bom. 586 in which it was held thatto make the provisions of Article 178 applicable, the application must be ofsuch a nature that the Court would not be bound to exercise the powers desiredby the applicant without such an application being made. There are numerous sectionsin the Code which direct that for certain relief, an application must be made;but there is nothing in the Code compelling a person having the conduct of apending suit to make formal applications from time to time, asking the Court toproceed to judgment. The form of procedure and the manner of dealing with suitsis amply provided for by the Code. In the present case, so far as we can see,the Court was bound, on the oral applications of the appellants pleader,indeed without any such application at all, to fix a date for the first hearingof the enquiry, and after hearing the parties and fixing such issues as mightbe necessary for the disposal of the subject-matter in dispute, to proceed withit as if it were dealing with a case based on a plaint. Upon the dates of theprevious applications made for execution of the decree, and having regard tonature of them, we think that the applications, were Article 178 or 179applicable, would not have been barred. But upon the question referred to us,we think the conclusion must be that neither Article 178 nor Article 179 of theLimitation Act is applicable, that the application is not barred, and that thisappeal must be decreed with costs.

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Puran Chand and Ors.vs. Roy Radha Kishen (23.11.1891- CALHC)