Abdur Rahim, J.
1. The question raised by this appeal relates to mesne profits of a village called Repudi which is in possession of the Receiver of the Nidadavole estate. The appellant obtained a decree for recovery of the village in the court of the District Judge of Godavari but in an appeal by one out of the three reversioners entitled to the Nidadavole Zamindari who were also entitled to the estate of Papamma Row, the widow of the last Zamindar, it was held by the High Court that there had been no completed transfer of the village by Papamma Row, who had bought it with her own money, the plaintiff and hence she was not entitled to recover one-third share of the village which represented the share of the contesting reversioners. An appeal has been preferred from the judgment of the High Court to the Privy Council and is still pending decision. The dispute relating to one-third share in the village was not therefore finally determined, but in as much as the mesne profits in any event have to be determined, we have proceeded to hear this appeal which raises certain questions as to the principle on which the mesne profits are to be ascertained. The Receiver, we may mention, was appointed in a suit between the reversioners themselves, who, as already mentioned, are also heirs of Papamma Row.
2. The first question raised by the appeal arises in these circumstances. Papamma Row during her lifetime paid only part of the purchase money of the village Repudi. So the vendor after the death of Papamma Row sued the Receiver, who was in possession as representative of Papamma Row's estate, and re-covered the unpaid balance of the purchase money with interest and costs of the suit. The lower court, so far as we can make out from its judgment, which, we may observe, is so vague, as to be almost unintelligible on this and some other points, has held that this amount should be deducted from the mesue profits payable by the Receiver. We think this is clearly wrong. What was held by the court of first instance (O.S. No. 32 of 1903) was that Papamma Row made a valid transfer of the village to the plaintiff, of which, however, she herself was to remain in possession as long as she lived, and that she would pay the balance of the purchase money. We hold, therefore, that this plaintiff is not liable to pay the sum nor the interest on it nor the costs of the suit instituted by the vendor of Repudi against -the Receiver. It is to be noted that Mr. Seshagiri Iyer, the learned Vakil for the appellant, did not press his objection as to the liability of his client for apportion of the peishcush for fasli 1309 inasmuch as no such objection was taken in the lower court.
3. The 2nd question concerns the rate of interest on the mesne profits. The Subordinate Judge has allowed 31 per cent., the rate which the Receiver received from the bank in which he kept the money in deposit. It is rightly contended by the appellant that the ordinary court rate is 6 per cent, but having regard to the peculiar facts of the case we are not prepared to hold that the interest allowed by the lower court is too low.
4. The 3rd item which is covered by grounds Nos. 6 and 7 of the plaintiff's objections to the Commissioner's report involves the consideration of the following questions. The first is whether the plaintiff is entitled to hold the Receiver, who is undoubtedly in wrongful possession of the village, being in possession on behalf of the heirs of Papamma Row, liable for the rents for which the Receiver has obtained decree and which he has been willing to assign to the plaintiff. The plaintiff at first accepted the decrees but now claims that she is entitled to recover from the Receiver rents for which the decrees were obtained and is not bound to accept the decrees in lieu thereof. But we do not think her claim can be sustained. She is only entitled to what the Receiver actually received or might with flue diligence have received. He has, with due diligence, tried to recover the rents and obtained the decrees, and we do not see any reason why he should be compelled to execute them and recover the amounts for plaintiff.
5. In connection with the 3rd item the next question relates to a sum of Rs. 1,136-4-11 which is entered in the suspense account in the revised statement of the Commissioner dated the 8th March 1909. It is not very clear what this amount relates to. But the learned pleader for the respondent says it represents the rents for which the Receiver levied distress, but the distraints having been found to be illegal the rents were, not recovered. This would appear to be so from the 12th paragraph of the Commissioner's report. Now it appears the Receiver tendered pattas to the tenants in the same terms as the previous pattas for about four years which the tenants had accepted. But the tenants objected to the pattas tendered. The Receiver, in spite of the objection, adopted the summary procedure of distraint instead of filing a suit to enforce acceptance of pattas. The first court found the distraint to be illegal and this decision was upheld in appeal. It does not appear, so far as can be gathered from the record to which, our attention, has been, drawn, what led the Receiver to adopt the summary procedure and whether there was or was not any justification for it except the fact that in four previous faslis the tenants had accepted similar pattas. On the other hand the Receiver was made to pay costs to the tenants and it is contended-and there is some force in the contention-that the tenants would not have been allowed costs if their conduct had misled the Receiver into tendering the pattas found to be illegal and levying distraint relying on these pattas. It is difficult, however, in the absence of the record of the distraint proceedings, to express any decided opinion on the question how far those proceedings were justified. But the real question is whether the Receiver could have realised the rents with due diligence or not.
6. The fact that he failed to realise the rents due for the faslis in question by means of certain mistaken but bona fide proceedings is in itself no answer to the question. It is not' suggested that if he had demanded proper rents and taken appropriate proceedings for their realization, he could not have realized them. Even supposing that he was misled by the previous pattas there is no explanation forthcoming why he did not institute proper proceedings as soon as objection was taken to the pattas tendered or at least as soon as the court of first instance decided against him. We hold that the plaintiff is entitled to recover from the Receiver the rents entered in the suspense account.
7. Another question in connection with the 3rd item is whether the plaintiff is bound to accept certain promissory notes, which the defendant obtained from certain tenants for arrears of rent. This question must be answered in the negative. The promissory notes may not be of any value to the plaintiff and unless it is shown that circumstances compelled the defendant to take that course, he must make good the amount of rent for which he took the promissory notes.
8. The 4th item relates to the costs of distraint proceedings. The person in wrongful possession when accounting for the mesne profits is entitled to be reimbursed all necessary and proper expenses incurred in the management of the property in his possession. But it does not stand to reason that he should saddle the owner of the property with the cost of in fructuous proceedings instituted by him through a mistake however bona fide. Further proceedings by way of distraint are of an exceptional and summary character and the person who adopts such proceedings does so at his own risk-Doraisami Pillai v. Muthusamy Mooppan I.L.R. (1903) M. 94 and Munappa v. Dasineni I.L.R. (1883) M. 138. We therefore hold that the Receiver is not entitled to recover the costs of the litigation arising out of distraint proceedings from the plaintiff.
9. This disposes of all the questions argued before us by Mr. Seshagiri Iyer.
10. As regards the memo of objections the only item asked before us is that relating to interest on the unpaid purchase money, peishcush. We have found that the plaintiff is not bound to pay the unpaid balance of purchase money but the Receiver is entitled to interest on peishcush paid by him after Papamma Row's death.
11. We have not attempted to settle figures under the different heads as it was argued that they could be more conveniently settled in the lower court.
12. With these directions the case will be remitted to the lower court; each party will receive the costs of the appeal and the memo of objections from the other in proportion to his success. The costs will be determined by the lower court.
13. I agree.