1. This is an appeal from an order of the District Judge of West Khandesh setting aside the trial Court's order dismissing as time-barred the respondents' application under Section 144 of the Civil Procedure Code for restitution. He has remanded the case for decision thereof on the merits. The question raised in this appeal is one of limitation and it arises in this way. The plaintiff purchased in 1918 about one hundred mango trees in execution of a mortgage decree of 1910. As he found difficulty in recovering possession owing to obstruction by certain persons who claimed title to the trees, in 1921 he instituted an action for possession against those persons. Among them was one Jamnabai who claimed certain number of mango trees from a large cluster as purchaser from the mortgagor's daughter who had sold them as being outside the specific trees mortgaged. In 1924 a decree was passed in the plaintiff's favour. In execution he succeeded in obtaining possession of eighty mango trees on April 9, 1925. In appeal taken by some of the defendants it was contended that as the cluster of mango trees consisted of a very large number of trees exceeding hundred, it was incumbent on the plaintiff to establish the specific trees mortgaged and sold, and that there was no evidence of their identity. That argument appealed to the first appeal Court which therefore reversed the trial Court's decree and remanded the suit for ascertaining 'which of the trees were actually sold to the respondents.'
2. Unquestionably upon that reversal and remand the restitution of the trees taken possession of by virtue of the decree was properly consequential. But that was not done because there was no application for restitution under Section 144 of the Code then made. The suit thereafter upon remand proceeded to trial and the plaintiff's claim was upheld, except in respect to some trees which were claimed by defendant No. 3, Jamnabai, and since purchased on June 26, 1927, by the present respondents. The decree upon remand was passed on November 23, 1931. On April 12, 1933, Jamnabai's successors, the present respondents, applied merely for an order for mesne profits of those trees excluded from the original decree for the period of the alleged wrongful possession of the plaintiff commencing from the date of his possession in execution of the decree, namely, April 9, 1925, to the date of the application. That claim was resisted on the ground of limitation and the plea in that respect was upheld by the trial Court. But it did not find favour with the learned District Judge. He held, following Sonba v. Parashram A.I.R.  Nag. 101 that the awarding of mesne profits was not a proper consequence of the order of remand and reversal and that time commenced to run from the decree passed after remand. He, therefore, remanded the case for ascertaining the quantum of the profits recovered. Against that order the plaintiff's heirs have appealed.
3. It is clear upon authority that the application for restitution must be regarded as an application in execution and would be governed for the purpose of limitation by Article 182 of the Indian Limitation Act (IX of 1908) [See Kurgodigouda v. Ningangouda I.L.R. (1917) Bom. 625 ; 19 Bom. L.R. 638 and Hamidalli v. Ahmedalli I.L.R. (1920) Bom. 1137 : 23 Bom. L.R. 480. Consequently a person claiming restitution would have to do so within the period of three years from the date on which the right to make the claim arose. The question is which is the terminus a quo for computing that period. It is urged that limitation commenced from the date of the order of reversal and remand, namely, January 27, 1927, and that the application, therefore, is clearly barred. On the other hand it is said that the period commenced from the date on which the respondents succeeded in the suit, namely, November 23, 1931. The question is not free from difficulty. Undoubtedly, as I have remarked, it was obligatory on the Court upon an application for restitution to restore possession of the mango trees under Section 144 of the Civil Procedure Code when the first decree was reversed in appeal on January 27, 1927, and the case remanded. Ordinarily, on the reversal of a decree for possession the judgment-debtor would be entitled to possession if claimed. But no such claim appears to have been made in this case. The judgment-debtor would also be entitled to mesne profits during the period he was wrongfully kept out of possession. But it could not always be said upon reversal of the decree unless it gives clear indication of that fact that the possession taken under the original decree is wrongful. Section 144 makes a distinction between restitution which is properly consequential on the variation or reversal of the decree and restitution which is not. It emphasises the fact that discretion is vested in the Court to make an order for mesne profits which are properly consequential on such variation or reversal. That distinction recognises the possibility of a reversal not imprinting on the possession taken a wrongful character within the meaning of Section 2, Sub-section (12), of the Civil Procedure Code, containing the definition of 'mesne profits.' If in the order of reversal the character of that possession has been determined, then the question ceases. But if it is not and the Court remands the suit for determination of that question after fresh or further enquiry, then certainly as the learned District Judge has remarked it would be premature for the Court in the application by the successful appellant for restitution to make an order for mesne profits, for the Court would then be determining a question which was sub judice. That is what was decided in Sonba v. Parashram, and with respect I agree with the reasoning in that judgment.
4. Here it was made abundantly clear by the first appeal Court which reversed the decree and remanded the suit that the character of the plaintiff's possession could not then be determined until and unless the identity of the eighty mango trees claimed was ascertained. It was therefore impossible to say before the ascertainment was complete whether the plaintiff's possession was necessarily wrongful. I am unable to agree with the reasoning that the rule in Section 144 of the Code enunciates the doctrine of restitution in an unqualified form and contemplates a complete and unqualified restitution with all consequential reliefs. As I have already remarked, the language of the section makes a distinction in the Court's powers in placing the parties in the position which they would have occupied but for the decree. The Court has to regard the nature of the claim, the relief granted, the variation introduced in appeal and the manner in which the ultimate decision might affect the rights of the parties to the subject-matter in dispute. These considerations have necessarily to be borne in mind in exercising the discretion vested in the Court in determining the claim to ancillary relief by way of refund of costs, payment of interests, damages or compensation and mesne profits. I would therefore maintain the order of the lower appellate Court and dismiss this appeal with costs.