1. This appeal arises in a suit for redemption of a mortgage, dated the 5th of February 1863, executed by one Ram Bakhsh in favour of one Debi Das, in respect of a 10 biswas share of the village Lodhamai. The mortgage was usufructuary and it was provided in it that the profits were to be appropriated in lieu of interest, except a sum of Rs. 100 per annum which was to be paid to the mortgagor. There were other provisions in the mortgage which for the purposes of this appeal it is unnecessary to refer to. In 1866 Ram Bakhsh sold 7 biswas out of the 10 biswas, that is, his equity of redemption in the 7 biswas, to Abdul Rashid, Abdul Aziz and Mahmud Khan, defendants, sons of Zahur Ahmad Khan. In 1871 Zahur Ahmad Khan purchased at auction 2 biswas 19 biswansis and 10 kachwansis out of the remainder of the mortgaged property. The remaining 10 kachwansis was purchased by Debi Das, who thus broke up the integrity of the mortgage. Zahur Ahmad Khan died in 1873 leaving him surviving the three sons above-mentioned, five daughters and two widows. In 1877 the three sons under the guardian ship of their mother, brought a suit for redemption of the mortgage of 1863 against Debi Das. On the 25th of May, 1878, the suit was decreed by the Court of first instance, the decree providing that the plaintiffs should pay to the mortgagee Rs. 6,967-1-4. On the 17th of July, 1878, the plaintiffs to that suit obtained possession of the mortgaged property in execution of that decree. Debi Das preferred an appeal to this Court and on the 2nd of June, 1879, this Court held that the mortgagee was entitled to a further sum amounting to nearly Rs. 9,000 and varied the decree of the Court below by directing payment of the above sum in addition to the amount which the decree of the Court of first instance had ordered the plaintiffs to pay. The additional sum so awarded was not paid by the plaintiffs and the result was that the decree became infructuous. Debi Das thereupon applied for and resumed possession on the 1st of April 1880, He then asked the Court to grant him mesne profits for the period during which he was out of possession by reason of the plaintiffs having executed the decree obtained by them from the Court of first instance. On the 13th of March, 1881, the Court awarded to him Rs. 5,615-14-10 as mesne profits. For the realization of this amount Debi Das caused the equity of redemption of the plaintiffs to that suit to be sold by auction on the 20th of August, 1881, and himself purchased it. In 1886 he mortgaged the 10 biswas to Sagar Mal and Jumna Das who obtained a decree on their mortgage and caused 9 biswas 19 biswansis and 10 kachwansis to be sold by auction. This was purchased by Dilsukh Rai and Ali Ahmad, defendants first party. On the 7th of December 1901 the three sons of Zahur Ahmad Khan sold 4 biswas of the property to the present plaintiff Prabhu Dayal. In 1902 Prabhu Dayal, his vendors, namely, the three sons of Zahur Ahmad Khan and the daughters of Zahur Ahmad Khan brought a suit to redeem the mortgage of 1863. That suit was dismissed by this Court in 1905 on the ground among others that the heirs of Debi Das had not been joined as parties to the suit. On the 7th of September 1905 Abdul Rashid, Abdul Aziz and Mahmud Khan sold to Prabhu Dayal a further 1 biswa share and on the 16th of January 1905, Parbhu Dayal instituted the suit out of which this appeal has arisen for redemption of the mortgage of 1863.
2. The Court below has dismissed the suit on the ground that the equity of redemption of the mortgagors had validly passed to the mortgagee Debi Das under the auction sale which took place in 1881 and that, therefore, the plaintiff acquired no right under his purchase to redeem the mortgage.
3. The plaintiff has preferred this appeal. It is not denied that if the equity of redemption was acquired by the mortgagee the plaintiff's suit must fail but It is urged by the learned Advocate for the appellant that the Court had no jurisdiction to award mesne profits, that the auction sale held in 1881 for the realisation of the mesne profits so awarded was a nullity and that the equity of redemption of the plaintiff's vendors did not pass to the mortgagee Debi Das. This contention is based on the argument that the decree of the High Court varying that of the Court below did not direct the award of mesne profits. Reliance is placed on the terms of Section 583 of the Code of Civil Procedure, 1882. We are unable to accede to the contention of the learned Advocate. In our opinion a decree of reversal by an appellate Court contains by necessary implication a direction to the Court below to cause restitution to be made of all the benefits of which the successful party in the appeal was deprived by the enforcement of the erroneous decree of the Court of first instance. As observed by Sir Barnes Peacock, C.J., in Hurro Chunder Roy Chowdhry v. Shooradhonee Debia 9 W.R. 402; B.L.R. Sup. Vol. 985 'It is the legal effect of a decree of reversal that the party against whom the decree was given is to have restitution of all that he has been deprived of under it. A Court of Appeal does not necessarily enter into the question whether a decree it is about to reverse has been executed or not.' A similar view was held by the Madras High Court in Dorasami Ayyar v. Annasami Ayyar 23 M. 306 and by this High Court in The Collector of Meerut v. Kalka Prasad 28 A. 665; A.W.N. 1906 171; 3 A.L.J. 665. The absence of specific direction in the decree of the High Court for payment of mesne profits did not deprive the Court which made the order of the 31st of March, 1881, of its jurisdiction to award mesne profits by way of restitution. It is clear that the Court which could enforce the liability of the defeated plaintiffs to make restitution was the Court of first instance. That Court had jurisdiction not only to restore to the mortgagee the possession which he had lost but all other benefits of which he had been deprived. As we have stated above, the decree of the High Court awarded to the mortgagee a further sum in addition to that awarded by the Court of first instance and the effect of the non-payment of this additional sum was that the suit stood dismissed. The mortgagee contended that under the terms of the mort gage he had the right to continue in possession and to receive the rents and profits so long as any amount remained due to him under the mortgage and was, therefore, entitled to the rents and profits which he did not obtain during the period of his dispossession. The only Court which could determine the question thus raised and had jurisdiction to decide that question was the Court of the Subordinate Judge. It had jurisdiction to decree whether mesne profits should or should not be awarded. Whether its decision was correct or erroneous is immaterial as the Court had jurisdiction to decide rightly and to decide wrongly. Even if it be assumed that it erred in awarding mesne profits, it cannot be said that it acted without jurisdiction. Dr. Satish Chander Banerji, the learned Advocate for the appellant, strenuously relied on the ruling of their Lordships of the Privy Council in Kalka Singh v. Paras Ram 22 C. 434; 22 I.A. 68. That ruling is in our judgment wholly inapplicable to the present case. There a Court had made a decree for possession but not for mesne profits. The Court executing the decree in spite of the absence of a direction in the decree itself as to the payment of mesne profits awarded such profits to the decree-holders and sold the judgment-debtor's property for the realisation thereof. It was held that the order of the Court executing the decree for the award of mesne profits was without jurisdiction. That is not the case here. As we have pointed out above the Court of first instance was competent to determine the question of restitution. It had, therefore, jurisdiction to award mesne profits by way of restitution and it cannot be rightly contended that in so awarding it, it acted without jurisdiction. We are, therefore, of opinion that the sale which took place in execution of the decree for mesne profits so far back as the year 1881 was a valid sale and conveyed to the purchaser the equity of redemption of the vendors of the plaintiff.
4. The next contention on behalf of the appellant is that the order of the 31st of March 1881 was procured by the mortgagee by fraud. We are not satisfied that any fraud was perpetrated. It is true that the mortgagee had withdrawn from Court the amount awarded to him under the decree of the Court of first instance but that circumstance did not, in any way, affect his right to claim mesne profits upon the decree of the Court of first instance being varied and superseded by the decree of the lower appellate Court. There was nothing which he concealed from the Court and we fail to see in what respect it can be said that he acted fraudulently to the injury of the interests of the mortgagors.
5. The third contention on behalf of the appellant is that the Court below ought not to have dismissed the suit totally and that the whole of the equity of redemption had not passed to this mortgagee Debi Das. It is said that after the death of Zahur Ahmad Khan, a portion of his interest in the mortgaged property was inherited by his five daughters, two of whom died in 1897. The brothers of those daughters it is urged inherited a portion of their share and as this share was acquired after the auction sale and as the sisters were no parties to the suit in which mesne profits were awarded the share of the sisters inherited by the plaintiff's vendors was saved to them and as purchaser of such share the plaintiff is entitled to claim redemption. As we have already stated, Abdul Rashid, Abdul Aziz and Mahmud Khan sold 4 biswas to the plaintiff on the 7th of December 1901. The sale-deed distinctly refers to the 4 biswas as being part of the 7 biswas mentioned in the khewat as khata No. 1. The 7 biswas share was purchased by Abdul Rashid, Abdul Aziz and Mahmud Khan from the original mortgagor Ram Bakhsh in 1866. Therefore, so far as the 4 biswas conveyed by sale-deed of the 7th of December, 1901, is concerned it was property which was owned by the three brothers before the auction sale of 1881. As for the 1 biswa sold to the plaintiff under the sale-deed of the 7th of July 1905, it is described in the sale-deed as being part of khatas NOS. 2 and 3. The khata No. 2 consists of 1 biswa 9 biswansis and 15 kachwansis which it is admitted in the plaint was given by Zahur Ahmad Khan in his life-time to his three sons. The third khata no doubt comprises property left by Zahur Ahmad at his death and inherited by his heirs; but as only 1 biswa out of khatas Nos. 2 and 3 was sold to the plaintiff and the plaintiff's vendors owned a larger share than 1 biswa in those khatas in their own right, and not as heirs to their sisters, we see no reason to presume that they intended to include in the sale a part of the share inherited by them from their sisters. We are, therefore, not satisfied that the sale to the plaintiff comprised any part of the property which his vendors may have acquired by right of inheritance to their sisters.
6. The last contention on behalf of the appellant is that he is also lessee from the three sons of Zahur Ahmad Khan and as such is entitled to claim redemption. The nature of the so-called lease is set forth in paragraph 5 of the plaint. It is manifest that the lease has not come into force and that in reality what is called a lease is only an agreement to grant a lease which would come into operation in the event of the lessors, recovering possession of the property now in the hands of transferees from the mortgagee. By virtue of a transaction of this nature the plaintiff is not entitled to claim redemption.
7. For these reasons we agree with the Court below in holding that the plaintiff's suit was untenable and accordingly dismiss the appeal with costs including fees on the higher scale.