Sri Raja Satrucharla Ramabhadra Razu Bahadur Garu and Do. Somasekhara Razu Bahadur Garu vs Sri Raja Satrucharla Jaganatha Razu Bahadur Garu

The respondent is the Zamindar of Merangi, and the appellants are his paternal uncles. The latter brought a suit against the former in September

1883, for partition of the Zamindari, [172] and obtained a decree in December 1885, from the District Court of Ganjam, for a half share in the

estate. The Zamindar then appealed, to the High Court, but the original decree was confirmed in March 1888. At his instance, an appeal to Her

Majesty''s Privy Council from the decision of the High Court was admitted u/s 603 of the Code of Civil Procedure, and it is still pending. In

February 1889, execution of the decree under appeal to the Privy Council was stayed, as regards the partition of the Zamindari, upon security

being given by the Zamindar, for the appellants'' share of two year''s mesne profits.

The contest in the present suit is as to five years'' mesne profits, claimed by the appellants, from the date of the partition suit. In their plaint in that

suit, they asked for 10 years'' past profits and for subsequent profits, and the 7th issue recorded therein by the District Court was in these terms:--

Are the plaintiffs entitled to mesne profits for 10 years or for what period?

The District Court decreed mesne profits for three, years prior to the suit, but said nothing in its judgment or decree, about the subsequent

profits, claimed in the plaint. Though the appellants now before us, objected to the decree of the District Court, so far as it refused them their

costs, they did ? not object to it, in so far as it omitted to provide for subsequent mesne profits. On appeal, the High Court dealt with the question

of costs, and said nothing about subsequent mesne profits. In December 1888, the appellants instituted the present suit, to recover mesne profits

for five years form 1883 to 1888, together with interest thereon, amounting on the whole to Rs. 61,275, with costs and subsequent interest. The

plaint stated, that the District Court ""made no adjudication "" in the partition suit, in regard to mesne profits, subsequent to the suit, and that the

cause of action arose in respect of them on the 14th December 1885, when that Court recognized their right to a half-share, and decreed partition

and possession of such share. The respondent resisted the claim on four grounds :--

That the mesne profits now claimed must be taken as having been refused by the decree in the partition suit, within the meaning of section 13,

explanation 3, of the CPC ; that in any case, no mesne profits for more than three years [173] prior to the present suit, could be awarded: that no

interest was due thereon; and, that the amounts paid to appellants and others, for their maintenance during the five years mentioned in the plaint,

should be set off ""against the amounts claimed.

Thereupon the Judge recorded the following issues for determination:--

Is it a fact that in the first suit the plaintiffs asked for profits that* might accrue subsequent to the institution of that suit?

Was that claim refused, or not granted? If so, does that estop plaintiffs from now claiming them?

II. Is so much of the claim, as relates to Faslies 1293, 1294, and 1295 barred by limitation?

III. Are plaintiffs entitled to interest on arrears-?

IV. What amounts have been paid to plaintiffs from the estate funds in these five years?

On the first issue, the District Judge found that the claim to subsequent mesne profits was substantially and directly in issue in the partition suit;

that it was not granted, and therefore, refused ; and that the present suit was barred. On the second issue, he held that Article 109 of the second

schedule of the Act of Limitation governed the case, and that, if the appellants were entitled to mesne profits at all, they would be entitled to such

profits, only for three years before the suit. As regards the 3rd issue, he was of opinion, that reasonable interest should be allowed on arrears of

mesne profits. As to the 4th issue, he did not consider it necessary to decide it, and in the result, he dismissed the appellants'' suit with costs on the

ground, that it was barred by Section 13, explanation 3. Hence this appeal.

The question which we have to determine is, whether the appellants'' claim must be taken to have been disallowed, under explanation 3, Section

13, Code of Civil Procedure, and, if so, to what extent. A second suit is clearly barred by Section 13 in respect of any matter, directly and

substantially in issue, between the same parties, and heard and finally decided in a previous suit, by a Court of competent jurisdiction. Explanation

3 states, that any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have

been [174] refused. The plaint in the partition suit prayed for a decree for subsequent profits, as part of the relief, to which the appellants were

entitled, by virtue of their right to insist on the partition of the Zamindary. It was competent to the District Court under, section 211, Code of Civil

Procedure, to have provided in its decree in the former suit, for payment of mesne profits, from the institution of that suit until partition and delivery

of possession to appellants of their half-share. But, in fact, the decree in the partition suit did admittedly not grant subsequent profits, though we

are* not in a position to say, for what reason. It is clear that, if subsequent mesne profits were expressly refused by that decree, the claim in

respect of them up to date of that decree would clearly be res judicata, the parties and the title under which the claim is made being the same in

both suits. The legal effect then of explanation 3 is that of treating the omission to. grant the relief asked for in the plaint, as equivalent to an express

refusal, and the claim there-t6 in a fresh suit as res judicata. The obvious intention is to prevent parties, who once-submit their claim for subsequent

profits to adjudication, in a suit for possession of immovable property based on title, from harassing .their opponents with a second suit in respect ''

of the same claim. If the District Court failed to adjudicate upon it, the appellants remedy lay in rectifying the error by appeal, but not in relying on

it, as the basis of a second suit. It is then said, that the cause of action as to subsequent mesne profits had not arisen at the date of the previous suit,

and that the appellants were not bound to claim an adjudication in their plaint, and the last clause of Section 244, lends support to that view. When

they once elect to claim an adjudication u/s 211, and by such election make it part, of the subject matter of the suit, they must either withdraw the

claim with the express permission of the Court, to institute a fresh suit, or be bound by the result of that suit.

As regards the last clause in Section 244, it can only bear the construction that that section does not of itself bar a fresh suit, but not that it

contracts or does away either with Section 13 or with explanation 3 which is part of that section. The learned Advocate-General drew our

attention at the hearing, to the order of this Court staying execution of the decree, so far as it relates to partition of the Zamindary, pending the

decision of the appeal to Her Majesty''s Privy Council, on condition that the Zamindar furnished [175] security for two years, mesne profits, and

argued, that it implied a recognition of the appellants'' title to subsequent profits. But the order in question was made u/s 608, of the Code of Civil

Procedure, and it has no reference to the period for which mesne profits are now claimed. The principle on which it rests, is that, under the decree

appealed against, the appellants are entitled to immediate execution and possession, and if the Court interferes with the exercise of their legal right,

for sufficient cause, until the decision of the appeal, it will only do so after seeing that by its action they are not likely to be damnified, if the appeal

happens to fail. Neither the language of Section 608, nor the principle underlying it, has a bearing on the claim now before us. At the hearing, the

learned Advocate-General has laid stress on the fact the the 7th issue in the partition suit related only to past profits, and that there was no issue as

to subsequent profits. The words in explanation 3, Section 13, are however, ""''Any relief claimed in the plaint,"" and, it is immaterial whether there

was a specific issue or not,. inasmuch as it is competent to the Court to direct an enquiry regarding subsequent profits in execution. The decision of

the Judge is, therefore, right, so far as it treats the decree in the partition suit on a construction of explanation 3, Section 13, as if it expressly

refused subsequent mesne profits.

The further question, then arises, whether Section 13 affects the claim to mesne profits, which accrued due from and after the date of decree in

the partition suit. The point for consideration is, whether the mesne profits constructively disallowed were those which had accrued up to date of

decree, or included also mesne profits, which thereafter accrued, before actual partition and transfer of possession, in execution of the decree.

The material portion of the Original decree in the partition suit is in these terms : It is ordered that the Zamindary of Merangi and other property

mentioned in the plaint schedule be divided into four shares, of which one share be given to each of the plaintiffs together with mesne profits for

three years, amounting to Rs. 14,250 on account of the shares of each of the plaintiffs."" The plaint in that suit (para. 16) prayed for a decree for

dividing the Zamindary and other property, and giving the plaintiffs their share of four shares, for payment of Rs. 95,000 as the amount of mesne

profits for ten years from 1873, and for '' subsequent profits, [176] and costs with interest. Insert in the decree, with reference to Section 13,

explanation 3, the words ""subsequent profits are refused""; and the question is, what is the construction to be placed on the decree as to the period

for which mesne profits were refused? Was it the intention to refuse subsequent profits up to date of decree, or for all time to come, until partition

is effected, and separate possession is awarded of the appellants'' moiety? In ascertaining the intention, two things have to be kept in view, viz., (1)

the terms of the latter portion of the decree, so that the words inserted with reference to explanation 3 may fit into it, and (2) the provisions of

Section 211, as to the extent to which the subsequent profits accruing after suit may be claimed and adjudged.

As regards (the construction of the decree, we are of opinion that it would be a contradiction in terms to say"" We decree to you immediate

partition and possession, but we take away from you the remedy which you may have for obtaining the fruits of such possession."" Again, the

withholding of possession after decree was wrongful on the part of the respondent, and the construction suggested for him would enable him to

gain by his own wrong. Turning to Section 211, Civil Procedure Code, it cannot, we think, be maintained that the section is to be ? taken to be

conclusive as to the object matter of a plea of res judicata founded on explanation 3, Section 13 of the Code of Civil Procedure. The section is, in

our opinion, only an enabling section, and it would be neither unreasonable nor illegal to refuse subsequent profits up to date of decree, and decree

immediate possession, leaving the party in whose favour the decree is made to his remedy by a regular suit, if immediate possession is not had. We

are therefore of opinion that the claim is barred by Section 13, only so far as it relates to mesne profits up to date of the decree in the partition suit,

vis,, 14th December 1885.

As regards the 2nd issue, we agree with the Judge, that the claim for mesne profits for more than three years before suit is barred by limitation.

As observed by him, Article 109 clearly governs the case, and the learned Advocate-General did not press upon us the 7th ground of appeal.

As to the 3rd issue, we also think that the appellants are entitled to interest on arrears of mesne profits, the claim being [177] reasonable and

consistent with Section 211, Code of Civil Procedure, Explanation. The Judge should, however, be requested to state what he considers to be the

reasonable rate at which interest *may be allowed.

The Judge has not recorded a finding on the 4th issue, nor has he taken an account as to the amount of mesne profits actually realized by the

respondent.

We shall, therefore, ask the Judge to take an account of mesne profits, which accrued during the three years before suit, or from 7th

December 1888, and of the sums which ought to be deducted from it, and ascertain the half share payable to the appellants and the interest to be

awarded upon it.

Note.--Per contra see Mori Mohan Sirkar v. The Secretary of State for India in Council ILR 17 0. 968. See also Byjnath Pershad v. Badhoo

Sing 10 W.R. 486. Prattp Chinda Burna v. Swarnamayi 4 B L.E.P.B. 118; and Haramohini Ohowdhrain v. Dhanman Chowdhrain 1 B.L.R.A.C.

188 which however proceed, on Act VIII of 1859, in which Section 2 did not contain a clause similar to Explanation 3 in Section 13 of Act XIV

of 1882.