JUDGMENT Sulaiman, C.J.
1. This is a defendant's appeal arising out of a suit for possession of immovable property and for past mesne profits up to the date of the suit. The suit was filed on 14th September 1920, and it resulted in a decree on 17th May 1922. The learned Subordinate Judge held that the plaintiff was entitled to a decree for possession and granted him such a decree. He however remarked that the plaintiff had given no evidence about the amount of the mesne profits to which he was entitled, but that he was entitled to mesne profits, He then remarked:
I shall therefore leave the matter to be determined in the execution department.
2. The operative portion of the judgment was in the following words:
That the plaintiffs claim for possession be decreed with costs. He is held to be entitled to recover mesne profits for three years preceding the suit, the amount of which shall be determined in execution.
3. The decree which was prepared naturally reproduced the operative portion of the order in the judgment. The Subordinate Judge himself does not appear to have taken any steps to fix a date for an inquiry into the amount of the mesne profits. On 3rd October 1922, the plaintiff decree-holder applied for execution of the decree for possession only and did not add any prayer for the ascertainment of the profits. The decree was executed and possession was delivered to him on 9th November 1922. Thereafter, on 3rd July 1924, he applied for execution of the decree with a prayer for determining the amount of the mesne profits. The judgment-debtor objected to this application on the ground that the Court below should have dismissed the claim as there was no proof of the amount of mesne profits and further that the application for execution was not maintainable. On 8th November 1924, another Subordinate Judge made the order that the case was covered by Order 20, Rule 12, Sub-sections (b) and (c), and so the decree-holder should make an application for a final decree according to law. He considered that the application as presented was irregular and rejected it on that ground and to that extent only. No one appealed from that order, which became final. On 11th May 1925, the decree-holder applied for ascertainment of the mesne profits under Order 20, Rule 12, Civil P.C. The office reported that some court-fees were due from him inasmuch as he was claiming more mesne profits now than had been mentioned in the plaint on which court-fee had been paid, and also that he should pay process fee. Time was allowed to him, but he failed to deposit the amount within that time. On 23rd May 1925, (p. 19), the Court, finding that the process fee and the court-fee required had not been paid till then, ordered that "the application be struck off for default on behalf of the petitioner".
4. Subsequently, on 14th September 1925, the judgment-debtor applied for an amendment of the decree as there had been an arithmetical mistake in the amount of the costs of the stamp as taxed in the decree. This application was allowed on 24th October 1925. Later on, the decree-holder again applied on 26th October 1928 for the determination of the mesne profits to which the judgment-debtor filed objections on 24th November 1928. The objections were based on the ground that the application was barred by limitation and also that it was barred by the principle of res judicata. Before this application was disposed of, the decree-holder applied on 12th January 1929, for an amendment of the decree of 17th May 1922, on the ground that there had been an accidentalslip or omission. The application purported to be under Section 152, Civil P.C. The judgment-debtor naturally objected to this application.
5. The Court below disposed of both these applications by a common order. It allowed the decree-holder's application for amendment and ordered that the decree should be corrected. It also held that the application was not barred by the principle of res judicata nor was it barred by limitation. It then proceeded to ascertain the actual amount of the mesne profits and has given to the decree-holder interest on the mesne profits at the rate of 12 per cent from the date of the decree dated 17th May 1922, till the date of its own decree, with future interest at 6 per cent per annum till the date of realisation. The defendant judgment-debtor has appealed to this Court and it is urged on his behalf that the application of the decree-holder was barred by time as well as by the principle of res judicata and that the amount of interest allowed was unfair. It is very unfortunate that Mr. Girish Prasad, who passed the decree on 17th May 1922, did not use the appropriate phraseology as is required by the Civil Procedure Code. Much of the trouble that has arisen in this case is due to carelessness on his part.
6. Under the old Civil Procedure Code there was a distinct provision in Section 212 for directing an inquiry into the amount of mesne profits when a suit for recovery of possession of immovable property and for mesne profits was brought; and Section 244(a) expressly provided that the Court executing the decree should determine the question regarding the amount of mesne profits as to which the decree has directed an inquiry. But under the new Civil Procedure Code, the inquiry cannot be postponed to the execution department. Order 20, Rule 12 lays down that in such a suit an inquiry may be directed as to such mesne profits, but that when such an inquiry is directed a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry. Accordingly it is the duty of the Court itself to pass a preliminary decree in the first instance and direct an inquiry as to the amount of mesne profits and as soon as the mesne profits have been ascertained, to pass the final decree in accordance with the result of the inquiry. There can be no doubt that the definitions of preliminary and final decrees as contained in Section 2(2). Explanation shows that the suit continues till the final decree is ultimately passed. Following the decision of their Lordships of the Privy Council in Munna Lal v. Sarat Chunder A.I.R. 1914 P.C. 150, that an application following on a preliminary decree for sale is not an application for execution, it has been held by all the Courts in India that an application for the preparation of the final decree is still an application in the suit and the suit does not finally terminate till the final decree is passed.
7. We may mention the recent case of the Collector of Etah v. Bindraban A.I.R. 1931 All. 538 in which it was held that the assessment of mesne profits was a proceeding in the suit and it had nothing to do with the execution department and it is only after the ascertainment of the mesne profits and the payment of the additional court-fee, if any, that a final decree comes into existence.
8. It is therefore quite clear that the learned Subordinate Judge had no jurisdiction to postpone the inquiry into the mesne profits to the execution department. What he could under the law have done was that he could have left over the question of the mesne profits for determination in a subsequent proceeding and ordered an inquiry as to that. This is the interpretation which was put on his judgment by Mr. Hari Har Prasad when he considered that a decree under Order 20, Rule 12 had been passed and the decree-holder should apply for the ascertainment of the mesne profits under that rule. That order having become final is binding on both the parties. The present Subordinate Judge has taken almost the same view and has actually ordered the amendment of the judgment and decree so as to remove all ambiguity. In these circumstances we think that we must treat the decree of 1922, though clothed in a very-defective language, as a decree passed under Order 20, Rule 12 which was the only appropriate rule under which such a decree could have been possibly passed.
9. The first question is whether the present application is barred by time. Obviously if the application is an application in the suit it is not an application for execution of the decree and the decree-holder is not entitled to take advantage of any previous application for execution or for any step taken in aid of execution to extend the period of limitation. If it is an application to which Article 181, Limitation Act, applies, the application must be made within three years of the date when the right to apply accrued.
10. The learned advocate for the appellant urges before us that the right to apply accrued on the date of the passing of the decree or, at any rate, on 8th November 1924. The second Subordinate Judge made it clear that he had a right to apply under Order 20, Rule 12 and the mere fact that' the decree was subsequently amended would not give him any fresh right to-apply. Strong reliance is placed on the case of Harakhpan Missir v. Jagdeo Missir A.I.R. 1924 Pat. 781, in which it was laid down that Article 181, Limitation Act, would apply to an application for the ascertainment of future mesne profits. Reference is also made to the case of Alluri Timmaraju v. Alluri Narasimha Raju A.I.R. 1928 Mad. 522. The Patna case is certainly in favour of the appellant, but the Madras case can be distinguished on the ground that they have made a special rule requiring an application for such a purpose. Reliance is also placed on the case of Anmol Singh v. Hari Shankar Lal A.I.R. 1930 All. 779, one principle of which was accepted by the Full Bench in Sat Parkash v. Bahal Rai A.I.R. 1931 All. 386. Anmol Singh's case A.I.R. 1930 All. 779 was one in which the question was whether a mortgage suit could abate after a preliminary decree had been passed. The Bench came to the conclusion that in view of the previous rulings of this Court as well as of other High Courts which in their opinion had not been even indirectly overruled by the pronouncement of their Lordships of the Privy Council in the case of Laahmi Narain v. Balmakund A.I.R. 1924 P.C. 198, it must be held that the suit continued till the final decree was passed and that Order 22 which in terms applied to a pending suit was equally applicable : see also Bhatu Ram Modi v. Foqal Ram A.I.R. 1926 Patna 141. In order to avoid all such difficulties Order 22, Rule 12 has been amended by this Court so as not to make Rules 3, 4 and 8 applicable to proceedings after the preliminary decree. We may point out that Order 34, Rules 3 and 5 require an application made by the successful plaintiff after the preliminary decree has been passed and before the final decree can be prepared. The Court therefore cannot suo motu start a proceeding relating to the preparation of the final decree or to order the preparation of such a decree out of its own accord. Similarly under Order 22, an application is necessary to bring on the record the legal representatives of a deceased party and the Court cannot proceed out of its own accord to ascertain who the heirs are and bring them on the record. When applications are specially required by the Code in such cases they would be applications under the Code and would therefore fall under Article 181, Limitation Act. But where no application is required by the Civil Procedure Code, it is very difficult to bold that Article 181 can apply to such an unnecessary application when made.
11. In Hansraj Gupta v. Official Liquidators of the Dehra Doon Mussoorie Electric Co. Ltd. A.I.R. 1933 P.C. 63, their Lordships of the Privy Council accepted the view which has prevailed in India, that Article 181 only relates to applications under the Civil Procedure Code. This view was followed by the Full Bench of this Court in the case of Shiam Lal v. Y.P. Oil Mills A.I.R. 1933 All. 789. Now, Order 20, Rule 12 does not require that after the preliminary decree has been passed the decree-holder should apply to the Court for starting the proceedings in connexion with an inquiry as to mesne profits. On the other hand Rule 12(2) provides that where au inquiry is so directed a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry. The Code accordingly contemplates that the suit should not be treated as being shelved as soon as the preliminary decree is passed, but that the proceedings should continue till the result of the inquiry as to the mesne profits. It would be somewhat analogous to a case where the Court decides some issues at first and then must proceed to decide the remaining issues. The present case is accordingly distinguishable from cases where applications are necessary before the Court can proceed to investigate the matter. We may point out that in the case of Lachmi Narain Marwari v. Balmakund Marwari A.I.R. 1924 P.C. 198, which was decided by their Lordships of the Privy Council, the matter had been compromised between the parties before the High Court and a consent decree was passed by the High Court. The terms of the compromise did not lay down that either party would have to make an application to the Court in order to start supplementary proceedings which had remained over. The judgment of their Lordships shows, that all that remained after the decree were certain supplementary proceedings with a view to carry out the consent decree. It was in such a case that their Lordships held that the Subordinate Judge should not have dismissed the suit itself simply because the decree-holder did not appear on a certain date.
12. In the present case it is not even necessary for us to consider whether the Subordinate Judge could have dismissed the suit when the plaintiff did not prosecute it properly. All that the Subordinate Judge did in fact was to strike off the application for the ascertainment of mesne profits on the ground that the court fee and the process fee had not been deposited with in the time allowed. He did not pass any order dismissing the suit itself. The result therefore is that the application for the ascertainment of mesne profits alone was dismissed and the suit was not finally disposed of. In our opinion it was not necessary for the decree-holder to file any separate application in order to start an inquiry as to mesne profits and therefore the application made afterwards, which must be treated as one to remind the Court that the suit had not yet been disposed of, is not one which is governed by Article 181, Limitation Act, at all. In this view of the matter the striking off of the previous application cannot be any bar in 'the way of the successful decree-holder's reminding the Court that the suit should be proceeded with, and the previous summary dismissal cannot operate as res judicata when such a fresh application is made. We must accordingly overrule the objection as to res judicata as well. The appeal fails and is dismissed with costs. As regards the rate of interest allowed the Court below has fixed 12 per cent as the rate at which the interest should be payable disallowing all interest up to the period of the preliminary decree. Under the Tenancy Act 12 per cent on rents due is the statutory rate and in many cases interest at 12 per cent per annum has been allowed on arrears of profits. We therefore do not think that when the Court was not allowing interest up to the date of the preliminary decree it has in any way erred in fixing the rate of interest for the profits. As observed by their Lordships of the Privy Council in the case of Grish Chunder Lahiri v. Shoshi Shikhareswar Roy (1900) 27 Cal. 921, at p. 967:
The Court has still jurisdiction to give or refuse interest as it chooses, because mesne profits are in the nature of damages which the Court may mould according to the justice of the case.
13. The plaintiff-respondent has filed cross-objections relating to the disallowance of interest for the period prior to the suit and the period from the institution of the suit till the passing of the preliminary decree and also challenging the deduction of collection charges from the profits realized as also regarding mesne profits in respect of certain Sir lands. As regards interest we think that inasmuch as the plaintiff has been given interest at 12 per cent per annum from the date of the preliminary decree till the date of the final decree, the Court has taken into account the fact that he did not get interest for the previous period. We do not think that we should interfere with the finding of the Court below on this point. The mesne profits to which the plaintiff is entitled are mesne profits defined in Section 2(2), Civil P.C. and mesne profits which the defendant either actually received or might with ordinary diligence have received from the property together with interest on such profits. The Court below has considered that the amount actually realized by the defendant was what a prudent owner would have realized and therefore is an amount which ought to have been realized by the defendant. Prom this it has deducted 10 per cent on account of collection charges. We think that the view taken by the Court below is fair and just. We see no point in the ground challenging the mesne profits in respect of the Sir lands. The cross-objections are dismissed with costs.