The withdrawal of an execution petition does not bar a subsequent application for the same relief, and Order 23 Rule 1 does not apply to cases with a passed decree.

Wallace, J.

1. The facts necessary for the disposal of this Second Appeal are: The plaintiff in O.S. No. 121 of 1917 on the tile of the District Munsifs Court, Peddapur, obtained, on 1st September 1919, a decree for possession of eight items of land and for past mesne profits for two years on all the items jointly at Rs. 280 a year. The decree left future mesne profits to be determined in execution. Against this decree the defendants appealed. The appellate Court on 30th April 1920 struck out item 8 from the decree and as in consequence of that the matter of mesne profits required re-adjustment, it directed that the plaintiff could by a petition apply for ascertainment of the mesne profits over seven items. An appeal to the High Court was dismissed on 25th April 1923. Meantime in 1922 the plaintiff had applied to the trial Court by way of execution petition -E. P. No. 275 of 1921, for ascertainment of future mesne profits, having, already for the past mesne profits withdrawn a sum of Rs. 560 deposited by defendants 1 and 2. This execution petition was withdrawn by him on 6th March 1922. Fourteen days later he put in a second execution petition asking for the ascertainment not only of future mesne profits but also for a re-ascertainment of past mesne profits on the ground that the lower appellate Courts decree had re-opened the whole matter of mesne profits. The trial Court awarded mesne profits past and future at a uniform rate of Rs. 700 a year. The lower appellate Court reduced the figure to Rs. 475 for past mesne pro-fits and Rs. 500 for future mesne profits. Defendants 1 and 2 have appealed against this to us.

2. As the lower appellate Court had omitted to deal with certain legal objections taken before it by the appellants, this Court remanded the second appeal for a finding on these points. On the submission of the finding we have heard the appeal.

3. The first point taken by the appellants is that the plaintiffs withdrawal of his execution petition on 6th March 1922 is tantamount to an abandonment of his claim for mesne profits. The argument is this. Since the ascertainment of the mesne profits was still a proceeding in the suit the original decree of the District Munsif was of the nature of a preliminary decree, the execution petition was, therefore, not really an execution petition, as of course it was not, but was of the nature of an application for final decree, and to such application Order 23, Rule 1 (3) would apply. Since the plaintiff did not get leave of the Court to withdraw his application he is barred from putting in a fresh one. As at present advised I think that it is sufficient to say that Order 23, Rule 1 (3), does not in terms apply. It is intended no doubt to apply to a case where a suit or part of a suit claim is withdrawn, but it does not in terms apply to an application for final decree. What is thereby barred is a fresh suit, not a fresh application. Here, in any case, a fresh suit is barred by the existence of the preliminary decree. I am not prepared to extend the application of that rule to a mere application for final decree. No authority for that proposition has been cited, while the ruling in Ramachandra Raju v. Bhujanga Rao A.I.R. 1924 Mad. 473 is authority to the contrary.

4. The next point has more substance. It is that the lower appellate Court had no power to increase the award for past mesne profits beyond the figure given in the decree of 1st September 1919, namely, Rs. 280 a year. This seems to me obvious. The plaintiff had not appealed against that figure and it was therefore final against him. It was not open to the lower appellate Court in its appeal against that decree to increase that figure, and therefore it was not open to it to direct the trial Court to re-open that matter in the direction of an increase. Nor when the judgment of the lower appellate Court dated 30th April 1920 is perused, does it afford any ground for supposing that it did so allow the trial Court scope t