K.K. Mathew, J.
1. The 13th defendant is the appellant. This appeal concerns the question whether an application for restitution was barred by law of limitation. The facts are: the plaintiff filed a suit as O. S. 438 of 1948 for recovery of money due under a mortgage bond as also for arrears of rent. The court of first instance passed a decree dismissing the claim for recovery of money due under the bond and directing the plaintiff to pay the costs of the 13th defendant. The matter was taken up in appeal by the plaintiff. That Court confirmed the decree of the lower Court. Then it was taken to the High Court in Second Appeal. In the meanwhile the 13th defendant executed the first Court's decree for costs and realised the same from the plaintiff. Thereafter the High Court reversed the decree and remanded the case to the lower appellate Court. The petitioner-plaintiff therefore filed an application in the trial Court for restitution i.e., for getting back the amount paid by him by way of costs to the 13th defendant. The 13th defendant raised several objections. The main point raised by him was that the petition was time barred as it was filed more than 3 years after the date of the order of remand in Second Appeal.
2. The trial Court came to the conclusion that the application was barred by limitation, and dismissed the petition on that ground. That Court was of the view that Article 181 of the Limitation Act was the article that would apply to the facts of the case and that the starting point of limitation was the date of the order in the Second Appeal. On appeal the lower appellate Court reversed that decision holding that the starting point of limitation was the date when the lower appellate Court passed the decree in the case after remand, and remitted the case for the consideration of the other objections.
3. It may be re-called that the High Court remanded the case after setting aside the decrees of the lower Courts on the ground that the dismissal of the suit by the Courts below on the ground of limitation was wrong and directed the lower appellate Court to dispose of the case after considering the other points raised by the defendants. Subsequently the lower appellate Court passed a decree in favour of the plaintiff and in that decree the direction is that 'the appellant is also entitled to his costs of the second appeal and costs here from the defendants 13 and 14.'
4. I do not know whether any right to restitution arises on the facts of this case, but now that the lower Courts have proceeded on that assumption and dealt with the question of limitation for such an application, I proceed to consider that question, on the assumption that a right to restitution is available to the plaintiff, without deciding it. It was contended by the appellant that the moment the High Court set aside the decree of the trial Court awarding the costs tothe 13th defendant, the plaintiff obtained the right to restitution as that right was automatic on the reversal of the decree of those Courts and therefore the plaintiff should have filed the application within three years from the date of the order of remand by the High Court. He referred me to the decision in Rohini Ramandhwaj v. Har Prasad Singh, AIR 1943 PC 189 in support of this proposition. It was held therein that the right to restitution is automatic on the reversal or variation of the decree or order. It is so in many cases but not in all. In certain circumstances the right to restitution is a matter of discretion with the Court. For instance, in the matter of costs, it does not necessarily follow that because the decree of the lower Court is set aside in appeal and the case remanded to that Court for passing fresh decree, that the right to restitution of the costs realised under the decree reversed by the appellate Court should automatically follow. Restitution in such cases is a matter within the discretion of the Court and it is possible to hold that the right to restitution in such cases does not arise until the lower Court has finally adjudicated upon the question and passed the decree or order as the case may be. Until then an application for restitution may be premature.
5. This question came up for consideration in Ganpat Gatlu v. Navnitlal Ranchhoddas, AIR 1940 Bom 30. There a purchaser of certain trees, finding difficulty in recovering possession due to obstruction by certain person who claimed title to the trees, instituted an action for possession against those persons. Among them there was one J who claimed a certain number of mango trees. In 1924 a decree was passed in the plaintiff's favour. In execution he succeeded in obtaining 80 mango trees. In appeal taken by some of the defendants the appellate Court reversed the trial Court's decree and remanded the case to that Court. The Court thereafter proceeded with the trial and the plaintiff's claim was upheld except in respect of some trees which were claimed by J. The decree upon remand was passed on 23-11-1931. On the 12th April 1933 J's successors applied for an order of mesne profits of those trees excluded from the original decree for the period of the alleged wrongful possession of the plaintiff commencing from the date of his possession in execution of the decree viz., 9th April 1925 to the date of the application. It was held that the time ran from 23-11-1931 and the application was in time. The head notes in the case correctly sets out the principles decided in the case:
'Ordinarily, on the reversal of a decree for possession the judgment-debtor will be entitled to possession if claimed. The judgment-debtor will also be entitled to mesne profits during the period he was wrongfully kept out of possession. But it cannot always be said upon reversal of the decree, unless it gives clear indication of that fact, that the possession taken under the original decree is wrongful, Section 144 makes a distinction between restitution which is properly consequential on the variation or reversal of the decree and restitution which is not. It emphasises the fact that discretion is vested in the Court to make an order for mesne profits which are properly consequential on such variation or reversal. That distinction recognises the possibility of a reversal not imprinting on the possession taken a wrongful character within the meaning of Section 2 Sub-section (12) containing the definition of 'mesne profits'. If in the order of reversal the character of that possession has not been determined and the Court remands the suit for determination of that question after fresh or further enquiry, then it will be premature for the Court in the application by the successful appellant for restitution to make an order for mesne profits, for the Court would then be determining, a question which was sub judice:'
The following observations appear at p. 32:
'The Court has to regard the nature of the claim, the relief granted, the variation introduced in appeal and the manner in which the ultimate decision might affect the rights of the parties to the subject-matter in dispute. These considerations have necessarily to be borne in mind in exercising the discretion vested in the Court in determining the claim to ancillary relief by way of refund of costs, payment of interest, damages or compensation and mesne profits.'
6. The reason given by the learned Judge for the decision applies equally to the facts of the present case. When the High Court set aside the decree of the lower appellate Court, it did not pass any specific order as regards the costs of the trial Court and or of the lower appellate Court. The decree only mentioned:
'The proportionate costs of this Second Appeal will abide the final result.'
There was no knowing at that time that the lower appellate Court will pass the same decree as it had passed before the remand making the plaintiff liable for the costs of the 13th defendant. In that case an application for restitution as soon as the order of remand by the High Court was passed would have been premature as the question had to be finally decided by the lower appellate Court when passing the decree after remand. In such cases it seems to me to be logical to hold that the right to restitution will arise only when the Court finally passes the decree after adjudicating the liability for costs of the trial Court as well as the lower appellate Court. Before the determination of that question, it will be futile to file an application for restitution because the decree that may be passed after remand may be same as that passed before. In such cases to require a party to approach the Court and file an application for restitution before the passing of the decree of the lower appellate Court seems to be rather unnecessary and therefore I hold that the application for restitution in this case filed within 3 years of the passing of the decree of the lower appellate Court was well within time.
7. I agree with the conclusion of the lower appellate Court that the application for restitution was filed within time and dismiss this Civil Miscellaneous Appeal. I make no order as to costs.