The interpretation of Order 20, Rule 12 and the application of Article 181 of the Limitation Act in relation to the requirement for an application for mesne profits.

Alfred Henry Lionel Leach, C.J.

1. In 1926 the respondents filed a suit in the Court of the District Munsif of Kasargod for the recovery of possession of several items of immovable property and for the payment of mesne profits. By a decree dated 2nd December, 1927, the District Munsif dismissed the suit. An appeal was then filed to the Court of the District Judge of South Kanara. The District Judge held that the respondents were entitled to recover possession of one of the items of property. In respect of that item he directed the trial Court to hold an inquiry as to past and future mesne profits and to pass a decree accordingly. The order of the District Judge was on the 6th November, 1930. On the 30lh March, 1934, the respondents applied to the trial Court to ascertain the mesne profits form 31st October, 1925, the date on which the appellant became possessed of the property, to 23rd May, 1932, when he surrendered possession to the respondents in pursuance of the decree of the District Court. The District Munsif held an inquiry and found that there was due to the respondents Rs. 1,173-4-7, which he directed the appellant to pay to them. The appellant filed an appeal before the District Judge and urged that the application was barred under Article 181 of Schedule II of Indian Limitation Act. The District Judge rejected the contention raised by the appellant that the application was barred by the law of Limitation. The contention was that, inasmuch as more than three years had elapsed between the date of the District Courts decree and the date of the filing of the application, Article 181 of the Limitation Act applied. The District Munsifs finding on the amount of mesne profits was confirmed and the appeal dismissed. This second appeal is the result and it has been placed before this Full Bench as there is a conflict of authority.

2. Order 20, Rule 12 as it appears in the Code of Civil Procedure reads as follows:

(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-

(a) for the possession of the property;

(b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the dccree, whichever event first occurs.

(2) Where an inquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

3. In 1911 this Court added to Rule 12 a third sub-rule which is in these terms:-

Where an appellate Court directs such an inquiry, it may direct the Court of First Instance to make the inquiry; and in every case the Court of First Instance shall, on the application of the decree-holder, inquire and pass the final decree.

4. It is said that as the result of the addition of Sub-rule (3) it is now obligatory on a decree-holder to file an application asking for an inquiry into mesne profits and for the passing of a final decree, and that Article 181 of the Limitation Act requires such an application to be made within three years of the preliminary decree.

5. In Timmaraju v. Narasimharaju (1927) 54 M.L.J. 665, Jackson and Srinivasa Aiyangar, JJ., expressed divergent opinions on this question. The facts there were these : A decree for possession with mesne profits was passed on 3rd February, 1919, by an appellate Court. On the 30th November, 1921, the plaintiff applied to the trial Court for an order determining the mesne profits. He paid batta, but service of the notice was not effected, and, on his failure to pay additional batta, the application was d