Basil Shah, J.
1. In consequence of the difference of opinion between Beaman and Heaton JJ., the following point of law has been referred to me for decision under Section 98 of the Code of Civil Procedure:--
Whether a plaintiff who has obtained a decree in his favour in the trial Court and gone into possession under it, and has been put out of possession under the decree of the first Court of appeal reversing the trial Court's decree (no claim for restitution having at this stage been preferred against him by the defendant), and who has succeeded in the Court of Second Appeal which has restored the judgment of the trial Court, can claim any benefit under Section 144 in respect of the time he was dispossessed between the decrees of the first and second appeal Courts 1.
2. I am of opinion that the plaintiff can claim such benefit under Section 144 of the Code of Civil Procedure. The words of the section are plain and cover the case of the plaintiff claiming the benefit of the section under the circumstances stated in the point of reference.
3. I do not quite follow the significance of the parenthetical clause in the question, viz., and 'no claim for restitution having at this stage been preferred against the defendant.' It probably refers to such claim for restitution in the form of compensation under the intermediate decree, as has been mentioned in the judgment of Beaman J. The defendant, however, in recovering back the possession under the intermediate decree did make a claim for restitution though not for restitution by way of compensation. In the view I take of the point it makes no difference whether the defendant did or did not make a claim for restitution in any sense under the intermediate decree.
4. The section provides that the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree as has been reversed : and for this purpose the Court may make any orders including orders for the payment of damages or compensation, which are properly consequential on such reversal.
5. The words 'any party' include a plaintiff and cannot be interpreted as meaning a defendant only. The plaintiff claims to be entitled to a certain benefit in virtue of the decree in second appeal and is entitled to be placed in the position which he would have occupied but for the decree of the Court of first appeal which was reversed; and on his application the Court may make an order for damages or compensation properly consequential on such reversal suited to the circumstances of the case. I am unable to see how the plaintiff's application for damages or compensation can be properly held to be outside the scope of the section, having regard to the words of the section, which are plain, and which I am bound to read in their ordinary and natural sense. It may be that the section includes some cases, which may not be cases of restitution in the ordinary acceptation of the term ; and it may be that if the words of the section were not clear, there may be some ground for refusing to treat them as cases of restitution. But where the Legislature has adopted a comprehensive phraseology, I do not think its scope could be properly curtailed by reference to any principle, which, though simple and uniform, yields the result that 'in no case can a plaintiff ask for restitution or any of its concomitant modes under Section 144', contrary to the words of the section. If the Legislature intended that Section 144 should not apply to a plaintiff in any case, the words 'any party' could not have been appropriately used. It may be that the plaintiff, who has obtained a decree in his favour for the first time in second appeal or after having obtained it in either of the lower Courts has not proceeded to execute it, may not be able to take advantage of Section 144, But that is no ground in my opinion for holding that the plaintiff, who has obtained possession in execution of the decree of the trial Court and is subsequently dispossessed under the decree of the District Court, cannot claim the benefit of Section 144, if finally the decree of the District Court is reversed, and it is found that his dispossession under it was not justified.
6. It is contended by Mr. Abhyankar for the defendant, first, that when the plaintiff finally obtains a decree in his favour, he can execute it under Section 47 and that to such a case Section 144 has no direct and natural application; and, secondly, that when the plaintiff obtains the final decree it is open to him to ask the final Court of appeal to make proper provision in the decree for such relief as he may be entitled to by way of interest, damages or compensation in consequence of an erroneous decree of the lower Court, and that it is an additional ground for holding that Section 144 is not intended to apply to the case of a plaintiff, who can get the necessary relief by the terms of the decree and by execution under Section 47, Civil Procedure Code.
7. I do not think that these considerations can justify the conclusion that Section 144 cannot apply to a plaintiff at all. It may be that to a large extent the plaintiff may be able to secure the relief given him by the final decree by an application under Section 47. But the circumstance that within certain limits the ground covered by Sections 47 and 144 is common as regards a plaintiff under certain circumstances affords no basis for holding that there can be no ground open to the plaintiff under Section 144, which is not covered by Section 47 of the Code.
8. As regards the contention that as the relief may be given by the decree, it cannot be claimed under Section 144, I think it must be disallowed. It may be possible in some cases for the Court in second appeal to make provision for such relief as the plaintiff claims in the present proceedings. But it is possible that in many cases, whether the provision is to be made for the benefit of the plaintiff or the defendant, the Court may not make any such provision for various reasons. At the time of passing the decree the Court is chiefly concerned with the adjustment of the rights of the parties without any reference to the rights arising in consequence of the change of possession during the pendency of the litigation under the decree, under appeal: and it may not be possible always for the Court to determine matters which are properly determinable under Section 144. Thus the absence of any such provision in the decree is not necessarily a ground for refusing the relief under Section 144. It may be that where the Court, while passing the decree, has adverted to any particular point covered by Section 144 and refused to grant relief on that point, any application under that section for the same relief will be refused. But such a refusal would be based on a different ground altogether; and the absence of any relief on the point, which it may be possible to provide for but has not been in fact provided for in the decree is not a ground for holding that Section 144 cannot apply to the case of a plaintiff. The plaintiff in my opinion is entitled to apply, and when the application comes to be considered on its merits, it will be open to the defendant to establish, if he can, that the particular relief which the plaintiff claims is definitely refused by the Court passing the final decree.
9. On these grounds I hold that the application of the plaintiff for an order for the payment of damages or compensation from the date of dispossession under the decree of the District Court until the date of the restoration of that possession under the decree in second appeal reversing the decree of the District Court is clearly within the scope of Section 144.
10. I have nothing to do at this stage with the merits of the claim, and express no opinion whatever thereon. It will be for the lower Court to determine whether under the circumstances the plaintiff has made out any case for an order for the payment of damages or compensation properly consequential on the reversal of the decree.
11. I agree with Heaton J. that this appeal should be allowed, The result of allowing the appeal is that the orders of the lower Courts are set aside and the application is remanded for disposal by the Court of first instance according to law.
12. Costs to be costs in the application.
13. The consequential order, which I make, is not stated in terms in the judgment of Mr. Justice Heaton : and there is no rule as to the procedure to be followed when the decision of the point referred to a Judge under Section 98 is not sufficient by itself to dispose of the appeal completely but when some further order becomes necessary for the proper disposal of the appeal. The practice under the Code of 1882 cannot afford any assistance, as under the old Section 575 the appeal, and not only the point of law, was to be decided by the Judge or Judges to whom the reference was made. Under these circumstances, as the order is consequential, I have consulted Mr. Justice Heaton about it, and he agrees that that is the order which he would have made if he had been able to dispose of the appeal.
14. This case illustrates the desirability of making definite rules regulating such references.