Varadaraja Iyengar, J.
1. These two appeals are by the assignee-decree-holder and are directed against the same order as to restitution in execution.
2. The decree in the case was passed on 26-3-1112 on the contest of the 3rd defendant alone, as against the defendants 1 to 3 and charged on the property scheduled to the decree. On 'foot of this decree, the Court sale of the properly took place on 13-7-1113 and was confirmed, after dismissal of a petition under Order 21, Rule 90, C. P. C. filed by the defendants 2 and 3, on 13-1-1116 and the property was in due course delivered on 31-1-1118.
Meanwhile on 7-4-1113 the 1st defendant applied to set aside the ex parte decree in the case as against him and got it set aside. The scope of the order under Order 9, Rule 13, as to whether it reopened the whole case was finally decided in G. R. P. 928 of 1121 to the effect that the reopening was only as against the 1st defendant. The suit after retrial, was decreed once again not only against the 1st defendant but against the other defendants as well.
The plaintiff took up the matter to the District Court in appeal and got the matter clarified to say that the fresh decree was intended to be passed only as against the 1st defendant and his interest in the property. The High Court confirmed this view in second appeal by the 1st defendant by its decree on 19-10-1953.
3. As soon as the Munsiff passed his decree after retrial, the 1st defendant deposited in Court the entire decree amount on 25-8-1123 and applied for restitution of the property with mesne profits at the rate of Rs. 25 per month. This was resisted by the assignee-decree-holder on various grounds. The Courts below have now concurrently allowed the restitution applications of the 1st defendant and hence these two appeals.
4. Learned Counsel for the appellant says that the decree was reopened only as against the 1st defendant personally and that he has now no interest in the property to agitate at all. So the re-deiivery should he limited to the 1st defendant's 1/2 interest in the property with mesne profits from date of delivery 31-1-1118 at the rate of Rs. 12 for the entire property.
5. The first contention is obviously wrong. When the decree was reopened as against the 1st defendant personally, it meant that all his interests in the property were disburdened of the liability under the decree. The object of the proceedings under Order 9, Rule 13 was to give fresh opportunity to a debtor to re-agitate the plaint claim. To allow him to question part only of the ex parte decree as against him, will amount to withholding with one hand what is granted by the other.
Learned Counsel referred to an observation in the final-High Court judgment dated 19-10-1953 to say that the decree had been kept in tact as against the defendants 2 and 3 and the property. But what was meant was only their interest in the property. It follows therefore that as soon as the 1st decree was set aside, and the Court sale of the 1st defendant's interest in the property fell along with it, the 1st defendant was entitled to restitution.
And this right is available even though fresh decree is passed against him on much the same lines las originally. See Sliivbai v. Yeshu, ILR 43 Bom 235; (AIR 1919 Bom 175) (A).
6. But the Courts below were wrong in allowing a redelivery of the entire property to the 1st defendant, and this with all mesne profits asked by him. The order of the executing Court did not give any reason for its directions. But the Court below said that a peculiar position had developed by which what the defendants 2 and 3 could not claim on their application could be achieved on the 1st defendant's application because the decree was freshly passed as against him and he has deposited the entire decree amount. It thought that the Court sale as against the defendants 2 and 3 stood-wipcd out and all that the decree-holder could claim was payment of the decree amount. But this ignores the finality of the Court sale as against defendants 2 and 3. The only consequence of the sale being set aside in part its against the 1st defendant's half share, is in my opinion, to compel the auction-purchaser to hold on to his Court sale depleted of portion of the property sold though in satisfaction of the full decree with the result that the 1st defendant can withdraw totally the amounts deposited by him.
The Court sale stood effective notwithstanding it became a bad bargain. It was not a ease of no saleable interest in the judgment-debtor altogether. In any event no application had been made to set aside the sale on that score and in time. So the sale stood.
6a. The question next is what mense profits the 1st defendant is entitled to. The Courts below have not scanned this aspect altogether. The 1st defendant had himself adopted an estimate of the profits when he gave security therefor in connection with his stay application pending Order 9, Rule 13 proceedings i.e. he had deposited into Court a sum of Rs. 36 as mesne profits of the whole property for 3 years. On this basis the 1st defendant will be entitled to get mesne profits from the assignee-decree-holder from 31-1-1118, the date of delivery i.e., at the rate of Rs. 6 per annum.
7. I therefore order that the 1st defendant will get delivery from the appellant-assignee decree-holder, of one half the property with mesne profits at the rate of Rs. 6 per annum from 31-1-1118 and until recovery subject to Order 20, Rule 12. The 1st defendant may apply for issue of commission in execution to have the property divided by metes and bonnets and to have his one-half portion delivered.
8. In the circumstances of the case the parties will bear their costs throughout. The appeals are thus allowed to the above extent and dismissed otherwise.