1. The question which has been referred to a Full Bench is whether, on the facts of this case, the claim of the plaintiff in O.S. No. 95 of 1898 for mesne profits in respect of the period between the institution of O.S. No. 21 of 1804 and the decree therein is res judicata or is barred by the provisions of Section 373 of the Code. The facts are as follows:

On January 26th 1894 the plaintiff instituted a suit (O. S. No. 21 of 1894) in which he claimed the recovery of possession of certain land, mesne profits for the three faslies prior to the institution of the suit and future mesne profits until delivery of possession. This suit was dismissed. The plaintiff preferred an appeal and in his memorandum of appeal stated that mesne profits would be made the subject of a separate suit. The Lower appellate Court reversed the judgment of the Court of First Instance and allowed the plaintiffs claim with mesne profits as claimed in the plaint. The defendants then preferred a second appeal to this Court, and the plaintiff put in a memorandum of objections stating that the Lower Appellate Court ought to have allowed interest on the mesne profits and ought to have distinctly provided in t