1. The opposite party, appellant before us, obtained a decree ex parte against the respondents, and it was directed that mesne profits should be ascertained in the execution department. Possession of the land in suit was delivered in due course to the decree-holder who, thereupon, applied for assessment of the wasilut. The necessary enquiries were made and a final decree, also ex parte, was passed on the 2nd February 1908. After attachment had issued on the 29th August 1908, the respondents came in and applied, in terms of Section 244 of the old Code of Civil Procedure, alleging, inter alia fraud on the part of the decree-holder, and asking that the enquiries into mesne profits be re-opened. This application was made on the 4th November 1908. The first Court held that Section 244 did not apply, but the District Judge, on appeal, having come to a different conclusion, has remanded the case for re-trial on the merits.
2. We are of opinion that the judgment of the District Judge cannot be sustained. In first place, the final decree ascertaining mesne profits is res judicata between the parties unless and until it is set aside. The principle of res judicata has been extended to questions decided in execution proceedings, see the decisions of the Privy Council in Ram Kirpal v. Rup Kuar 11 I.A. 37 : 6 A. 269, Beni Ram v. Nanhu Mal 11 I.A. 181 : 7 A. 102 and Mungul Pershad Dichit v. Grijakant Lahiri Chowdhury 8 I. A. 123 : 8 C. 51 : 11 C.L.R. 113. It was observed by their Lordships of the Judicial Committee that the binding force of such a judgment depends upon general principles of law at ‘ut finis litium’
3. Nextly, although the mesne profits were assessed by the executing Court, that procedure was not one in execution of any decree, for it resulted in a final decree being passed in continuation of the original suit. This accords with the view expressed in two cases of this Court Puran Chand v. Roy Radha Kishen 19 C. 132 (F.B.) and Harmanoje Narain Singh v. Ramprosad Narain Singh 6 C.L.J. 462. These authorities deal with questions of limitation, but the matter is put very clearly in a passage of the judgment of the Full Bench where it was said: There is nothing that can be executed under Section 255 of the Code until the actual amount of mesne profits has been found and determined.” It is obvious that if the respondents were permitted to re-agitate the question of mesne profits, under Section 244 of the Code, they would be able to do so without any bar of time, and this consideration alone suffices to defeat their application.
4. The remedy open to the respondent was by way of appeal from the ex parte decree, or by an application for review of judgment or under Section 108 of the Code. These remedies were not pursued though it appears, an application under Section 108 was made but held to be barred by limitation. This matter, however, is not before us in this appeal.
5. The appeal is allowed and the order of the District Judge remanding the case is set aside. The respondents will pay the appellant his costs in both the Courts. We assess the hearing fee at three gold mohurs.