JUDGMENT

Arthur Strachey, C.J. - The plaintiff in this case claimed a sum of money in respect of the mesne profits of a zamindari property for the year 1301 Fasli,. that is to say, from the 26th September 1893 to the 14th September 1894. The suit was instituted in June 1896. In defence to the suit it was pleaded that inasmuch as the mesne profits claimed in the suit had been expressly claimed in a previous suit, and had not been allowed in that suit, the claim was barred as res judicata by virtue of Explanation III to Section 13 of the Code of Civil Procedure. That plea was overruled by both the lower Courts. It is again raised by the defendant in his Second Appeal to this Court. The only question which we have to decide is whether the Courts ought to have held the suit to be barred by Section 13 of the Code.

2. The former suit was brought by the same plaintiff against the same defendant on the 5th December 1893. In the plaint the plaintiff claimed to recover possession of the same share of zamindari property, and of a dwelling-house. He also claimed mesne profits as follows--first, mesne profits for 1298 to 1300 Fasli both years inclusive; and secondly, future mesne profits that is, mesne profits from the date of the institution of the suit up to the date when possession of the property should be delivered to him.

3. The decree in that suit was passed on the 6th June 1894. It awarded possession to the plaintiff of both the properties claimed. As regards mesne profits, it awarded to the plaintiff a sum of Rs. 1,882-9-11, out of Rs. 3,089-10-10 which were claimed in the plaint as mesne profits for the Fasli years prior to the suit. That is, it awarded mesne profits up to the 25th September 1893. Then followed the words--"The rest of the claim is dismissed." In the present suit the claim is for mesne profits for the year 1301 Fasli, that is, from the 26th September 1893, to the 14th September 1894, in other words, from the date up to which the decree in the first suit awarded mesne profits. The contention of the defendant is that as in the former suit the plaint included a prayer for future mesne profits subsequent to the institution of that suit and up to the date of delivery of possession, and as that claim must, in view of Explanation III to Section 13, be deemed to have been refused, the plaintiff cannot now claim any profits subsequent to the institution of that suit.

4. Before dealing with this contention I must again refer to the terms of the decree of the 6th June 1894. The expression "the rest of the claim is dismissed" suggests at first sight that the dismissal expressly referred, and was intended to refer, to the claim for mesne profits after the institution of the suit. If it did so, then the prayer for such future profits was of course expressly refused. We are, however, entitled in construing the decree to look at the judgment, and when the judgment is looked at, I think it is clear that the Court in using the expression "the rest of the claim is dismissed" was referring, not to any mesne profits after suit, but to the mesne profits claimed for the period before suit in excess of the Rs. 1,882-9-11, which was all that the Court considered the plaintiff entitled to for that period, The judgment further shows that, for some unexplained reason the Court was not dealing at all with the claim for future mesne profits. It either overlooked that claim or purposely refrained from dealing with it. However, if the argument of the learned advocate for the appellant is correct, the present claim is none the less barred by Explanation III to Section 13, because in the former suit it was a relief claimed in the plaint which was not expressly granted by the decree, and which, therefore, for the purpose of res judicata must be deemed to have been refused.

5. This case has been referred to a Full Bench for the purpose of considering a ruling of this Court which is directly in point, according to which the argument for the appellant woul