1. This a first appeal from an order in execution. The circumstances are as follows : The plaintiff obtained a pre-emption decree in the Court of first instance and deposited Rs. 14,731-6-0, pre-emption money. The defendant appealed to this Court and applied for stay of delivery of possession to plaintiff pending disposal of appeal. On 22nd March 1928, this Court ordered that possession be not made over to the plaintiff, but fixed Rs. 10 per cent, per annum interest to be paid to the plaintiff incase the appellant fails in his appeal. This order was obviously intended to fix a rate for the loss of mesne profits to the plaintiff in case the plaintiff was ultimately found to be entitled to succeed in his suit for pre-emption. The defendant applied to the Court of first instance on 18th April 1928, to withdraw the pre-emption money deposited by the plaintiff on the ground that the defendant might be liable to pay interest on this amount. On 1st May 1928, the lower Court ordered that the money deposited be made over to the defendant. The money was actually withdrawn by defendant on 8th May 1928. On 16th December 1930, the appeal of the defendant was allowed by the High Court and the suit of the plaintiff for pre-emption was dismissed. On 12th June 1931, the defendant re-deposited the amount of preemption money. The application of the plaintiff in the lower Court was to recover the amount of pre-emption money deposited and interest on it from the defendant. The defendant opposed the application on the grounds that the lower Court could make no order about refund of preemption money, and that no interest should be allowed. The lower Court has directed refund of the pre-emption money to the plaintiff and interest at 6 per cent for the period 8th May 1928 to 12th June 1931, that is the whole period during which the pre-emption money was in the possession of the defendant. The appeal of the defendants sets forth firstly that Section 144, Civil P.C. has no application to the case, and secondly, that the plaintiff is not entitled to any interest on the sum withdrawn.
2. We consider that the terms of Section 144, Civil P.C. do apply to the case. The argument of the learned Counsel was that because his client, the defendant, has succeeded in his appeal to this Court, therefore, the only question of restitution under Section 144 would be of restitution of property to the defendant, and that there could be no question of restitution of property to the plaintiff. But the language of Section 144 states that the Court may place the parties in the position which they would have occupied but for the decree which has been set aside or varied. In the present case if the pre-emption decree had not been granted by the Court of first instance, the plaintiff would not have deposited his pre-emption money. Accordingly, the plaintiff is entitled to the restoration of his pre-emption money deposited. As regards the question of interest Section 144 specifically states that the Court may make any orders for the payment of interest which are properly consequential on such variation or reversal. Now it is proved that if the pre-emption money had remained in deposit with the Court, the plaintiff would not have received any interest on it. On the other hand, on the application of defendant the defendant was allowed the use of the money, and the defendant has benefited by the use of that money, for the period in question. It is, therefore, only equitable that the defendant should restore to the plaintiff the benefit which he has derived from the use of the plaintiff's money. The question as to the rate to be allowed for this user is the question raised in the cross-objection, and the plaintiff claims that the rate of user should be 10 per cent. This claim is founded on the fact that this Court ordered that 10 per cent should be the rate to be paid to the plaintiff in case the plaintiff succeeded in his appeal to this Court. That, as already observed, was a rate which was intended to compensate the plaintiff for mesne profits on the property the possession of which was denied to him during the period by the defendant. That rate, therefore, is no criterion for the rate which would be equitable for the user of the money by the defendant. We consider that 6 per cent is a fair rate of interest to be awarded for such user, as this was approximately the rate of interest on Government securities at that time.
3. Accordingly, we dismiss both the appeal and the cross-objection with costs.