Walsh, Ag. C.J.
1. In our opinion, the Judge's order is technically right according to the strict view of the law. Although in practice the Collector and his sale officers may sometimes take another view, fruit trees are not included in the term 'standing timber.' Fruit trees are undoubtedly other produce of the earth in the colloquial sense of the word, but when one studies the provisions of Section 193, Sub-section (k), the other produce of the earth is clearly meant to be ejusdem generis with growing crops and are clearly mentioned together with growing crops whereas standing timber is not. It is obvious that it was intended to give special rights over standing timber which may be cut down for buildings from time to time, and which may, therefore, be said to be an ambiguous term. It was, therefore, thought by the draftsman necessary to give it a special place in the section. That would seem to indicate that fruit trees were not contemplated. The Small Cause Court Judge refers to the General Clauses Act which includes trees generally in the term 'immovable property,' He then says that fruit trees are not included in the term 'timber' or 'standing timber.' He is quite right. That view was taken by Mr. Justice Rafiq in the year 1912, and is still treated as good law. Therefore, these trees should not have been sold by an officer who had only power to sell moveable property.
2. On the other hand, the defendant has been tricked into buying them by an act of the Court or an act of Government official carrying out Government business. In the result, the defendant's money has been utilised to discharge the plaintiff's public debt of paying Government revenue, and we think as a matter of equity that the plaintiff ought not to sue for these trees and set up the mistake made by the officer against the equity of the defendant without himself doing equity and replacing the money by which he has been benefited from the defendant's pocket. The whole thing is small and not worth all the trouble that has been taken over it by remanding it for further hearing. The plaintiff has not chosen to appear here, and we think the equitable thing is to make an end of the whole case by declaring that the plaintiff will be owner in possession of the trees when he has repaid to the defendant the sum of Rs. 30, the price of the trees, together with the sum of Rs. 9-10-0 representing interest at 6% per annum from the date of the purchase down to the present moment, the total being Rs. 39-10-0. In other words, we declare that the defendant has a charge to that extent over the trees. If the plaintiff does not pay the Rs. 39-10-0 within six months from to-day, the trees will become the property of the defendant.