The omission to award future mesne profits in a previous suit does not bar the maintainability of a second suit for the same, and the liability of the defendants for rent and crops under the Transfer of Property Act.

Varadachariar, J.

1. This second appeal arises out of a suit in which the plaint comprised 3 heads of claim and the Courts below have dismissed the suit in respect of all those claims on grounds of law. It is much to be regretted that the questions of fact arising in the case remain to be investigated hereafter, after the lapse of several years.

2. The following are the circumstances that led up to this suit. The plaintiff instituted O.S. No. 90 of 1924 on the file of the Mangalore Sub-Court, for recovery of possession of certain properties with mesne profits and certain alienees were impleaded as parties thereto. The defendants to the present suit were defendants 8 and 9 in the former suit. That suit was referred to arbitrators and an award was passed on 13th September 1926 to the effect that the plaintiff would be entitled to take possession of the properties in the possession of the present defendants on depositing into Court on the next Vishu Shankramana day (middle of April 1927) a sum of Rs. 2,600 for payment to the defendants as compensation for improvements effected by them. The award went on to add that the plaintiff was not entitled to any mesne profits until the deposit was made and it was next observed that:

Defendants 8 and 9 being in possession under the term lease are liable to pay rent for the two years ending Vishu Shankramana next, viz. Rs. 100 in all to the plaintiff. . . . . from the date of deposit into Court the plaintiff is entitled to recover mesne profits from defendants 8 and 9 till recovery of possession at the rate to be ascertained if necessary after the deposit.

3. On the filing of this award into Court, a decree was passed on 28th September 1926 merely to the effect that the award be made a decree of Court. No formal decree with various clauses corresponding to the provisions of the Civil Procedure Code was drawn up. The money directed to be deposited was deposited only on 31st August 1927, and the plaintiff obtained possession through Court on 17th October 1927.

4. Nearly 3 years later, the plaintiff filed this suit for recovery of (1) Rs. 270 odd representing the value of arecanuts, cocoanuts, cashewnuts etc, alleged to have been collected by the defendants between 31st August 1927 and 17th October 1927; (2) Rs. 300 being the value of the crops on the land at the time of delivery which the defendants harvested away without handing over the crops with the land to the plaintiff, and (3) Rs. 122.8-0 being damages for waste committed in respect of a building on the land between the date of the decree and the date of delivery of possession. Several objections were raised to the plaintiffs claim on the merits, but two preliminary objections were also raised, one a plea of res judicata (issue 1) and the other an objection of bar Under Section 47, Civil P.C. (issue 2). Issue 4 raised the question whether the plaintiff was entitled to the value of the crops.

5. The District Munsif as well as the learned Subordinate Judge found against the plaintiff on these 3 issues and dismissed the suit. Hence the second appeal. It is conceded before me that issue 1 cannot possibly cover the claim for damages said to have been caused subsequent to the date of the decree. The objection to that part of the claim can only be Under Section 47, Civil P.C. The applicability of Section 47 to a claim for damages of this kind is supported by the decision of the Bombay High Court in Hari Shridhar v. Sakharam AIR 1923 Bom 391, followed by a Division Bench decision of this Court in Dhanarajagerji v. Parthasarathy AIR 1933 Mad 825 . There lis an expression of opinion to the contrary in Ramu Shettithi v. Manniappu Shettithi AIR 1917 Mad 79 and I am free to confess that my own inclination is against the view taken in the Bombay case and in the recent Madras case. But as the amount involved under this head is very small, it does not seem to me worthwhile to dissent from the later judgments or refer this question for consideration b