The main legal point established in the judgment is that the dismissal of an application for determination of mesne profits does not necessarily render it inoperative, and the plaintiff may still be entitled to proceed upon it.

Jackson, J.

1. Plaintiff sued for possession with mesne profits. The Additional District Munsif of Rajahmundry dismissed his suit. The Appellate Court decreed the suit on 3rd February, 1919. On the 30th November, 1921, the plaintiff put in an application under Order 20, Rule 12, for the determination of mense profits. He paid batta, but service of notice was not effected, and, on his failure to pay additional batta, the court dismissed the application. He applied again on 6th December, 1922, more than three years after the date of the Appellate Court decree. The question for determination is whether plaintiff is not now debarred from having the mesne profits ascertained.

2. There can be no doubt that the application of December, 1922, is an application within the scope of Article 181 of the Indian Limitation Act, and, being three years subsequent to the time when the right to apply accrued, it is clearly barred-

3. But the application of November, 1921, was within time and it is not so clear that plaintiff may not even now treat it as effective.

4. Under O. XX, Rule 12, a statutory obligation is laid upon the court to inquire into mesne profits and pass a final decree on the application of the decree-holder. Can the court avoid this obligation if the decree-holder makes the application, but does not pursue it by paying additional batta? There is no provision in the Code of Civil Procedure for dismissing an application closing the proceedings in such or similar circumstances. Rule 24, Civil Rules of Practice, provides that, within seven days from the admission of any proceeding in respect of which notice is to be issued by the court to any person, the party shall bring into court the stamped application for service. It is not, however, laid down what shall happen if the party fail to do so. If the court then dismisses the application, it can only be said to do so by virtue of Section 151 of the Code of Civil Procedure for the ends of justice or to prevent abuse of its process. If in these circumstances, a court deliberately passed proceedings under Section 151, Code of Civil Procedure, pointing out how the ends of justice or its own process were safeguarded, it might be hard to say that it acted without propriety or jurisdiction. But when a court merely records "Dismissed" and leaves it to be inferred whether it was or was not acting under Section 151, it can hardly be assumed that the only possible inference is in the affirmative.

5. In this connection the observations in Lachmi Narain Marwari v. Balmakund Marivari (1924) L.R. 51 IA 321 : ILR 4 Pat. 61 : 47 MLJ 441 (P.C.) are pertinent. in that case a suit had been remitted to the court of first instance in order that necessary steps might be taken not for ascertaining mesne profits but to effect a partition already decreed. The Subordinate Judge fixed a day for hearing; the plaintiff failed to appear and the suit was dismissed "for want of further prosecution". The Subordinate Judge explained this dismissal as meaning "the decree is certainly in existence, but the plaintiff is not entitled to further relief in the present litigation". Upon this the Judicial Committee observes:

He puts the plaintiff into an intolerable position, not able to go on with his suit, and yet not in a position to bring a fresh suit. Their Lordships are fully sensible of the necessity of leaving the Judges in India with ample power of discipline and means to check neglect and delay. If, for instance, the Subordinate Judge had made an order adjourning the proceedings sine die, with liberty to the plaintiff to restore the suit to the list on payment of all costs, it would have been a perfectly proper order. But the order was made without jurisdiction and was rightly set aside by the High Court.

6. Of course this case is not precisely upon all fours with the one before us. The Subordinate Judge dismissed a suit which he had no jurisdiction to dismiss ; which does not necessarily imply that he would have