Anantakrishna Aiyar, J.
1. The appellant before me was the 3rd plaintiff in O.S. No. 205 of 1921 on the file of the District Munsif's Court of Badagara. The suit was for redemption of four items of properties on the footing of a mortgage. The plaintiffs got a decree in the Trial Court for redemption but only in respect of three of the four items mentioned by them in their plaint. The decree directed that on payment by the plaintiffs into Court of a particular amount found to be due on the mortgage, the defendants should put the plaintiffs in possession of the three items. The plaintiffs paid the money into Court in accordance with the directions contained in the decree and obtained possession of the items decreed to them by the Trial Court. The 3rd plaintiff however preferred an appeal to the Lower Appellate Court against that part of the Trial Court's decree which disallowed her the other item claimed in the plaint. The result of the appeal was that the Appellate Court modified the decree of the Trial Court by decreeing the other item also in favour of the 3rd plaintiff. The 3rd plaintiff (the decree-holder) having obtained possession of this extra item which she succeeded in getting a decree for in appeal, filed an application to recover mesne profits due in respect of this item from the date on which she deposited the money into Court to the date, on which she obtained possession of that item. Her application was resisted by the 12th defendant, who was the only person interested in respect of this item. The Trial Court, however, held that the 3rd plaintiff was entitled to recover mesne profits as. on the footing of restitution and accordingly directed the 12th defendant to pay mesne profits to the 3rd plaintiff for the period in question. The 12th defendant preferred an appeal. The learned Subordinate Judge of Tellicherry came to the conclusion that Section 144, Civil Procedure Code, could not be applied to such a case as the present, and he accordingly reversed the Trial Court's order and disallowed the decree-holder's claim for the mesne profits in question. The 3rd plaintiff, the decree-holder, has accordingly preferred the present Civil Miscellaneous Second Appeal.
2. On her behalf it was contended by her learned Advocate that the case would substantially come under Section 144, Civil Procedure Code. He argued that the Trial Court's decree was varied by the Appellate Court's, decree and if the Trial Court had passed the decree which was ultimately passed by the Appellate Court, the 3rd plaintiff would have been in a position to obtain possession of this item and enjoy the mesne profits or income arising therefrom and that it was owing to the decree, erroneous in this respect, passed by the Trial Court that she has been deprived of possession of the mesne profits arising from this item. He also emphasised the words 'or otherwise' occurring in Section 144, Civil Procedure Code. He drew my attention to certain Privy Council cases, Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan and Jai Berham v. Kedar Nath Marwari where the scope of Section 144, or of Section 583 in the prior Code, has been discussed, by the Privy Council. On behalf of the respondent it was argued that Section 144 would apply only to cases where in execution of a decree passed by one Court a benefit is received by the decree-holder and thereafter that decree is reversed or set aside subsequently by a competent Court, and that in such cases the Court should place the parties in the position which they would have occupied but for such a decree which was varied or set aside. In the present case, the 3rd plaintiff was not in possession of this item at the date of the plaint or at the date of the Trial Court's decree. Her suit was to get possession of the same, among other items, That being so, it is rather difficult to apply that portion of Section 144 which speaks of 'placing the parties in the position which they would have occupied but for such a decree,' to. the case of the 3rd plaintiff. No doubt the words 'who have been deprived by way of execution of any property or benefits' do not occur in Section 144. But the word 'restitution' which occurs in that section would seem to imply that a party who applies under Section 144 should prove that he was in possession of something the restitution or restoration of which he seeks. As the plaintiff was not in possession of this property at the date of the Trial Court's decree, I feel it difficult to apply Section 144 in her favour. As for the words 'or otherwise' appearing in Section 144 on which reliance was placed for the appellant, it seems to me that the appellant could not get any real, assistance from those words either in the circumstances of this case. , The words 'or otherwise' are found in the Code of 1882 also. I have not been referred to any decision of any Court where these words have been the subject of comment. Having regard to the word 'restitution' which precedes immediately these words 'or otherwise', it would appear that the words 'or otherwise' were inserted to provide for cases where it is not possible to make restitution in the sense of restoring the very property that was lost to the petitioner and when the Court proceeds to do the next best thing that it could do in the petitioner's behalf in the circumstances. What 'other' relief should be granted by the Court would depend upon the circumstances of each case. A familiar instance is where in execution of a decree, subsequently reversed, the property of the petitioner was sold in Court-auction, and purchased not by a party to the suit but by a third person. In such a case, it has been held that the ultimate successful party would not be entitled to restitution in the sense of getting back the very property that was sold in execution of the erroneous decree. In such cases it has been held that the aggrieved party would be entitled to the proceeds of the sale, as the equivalent into which the original property has been converted. It is probably to cover such cases that the words 'or otherwise' have been inserted in the section. In any event, on the facts before me, it is clear that the appellant was not in possession of this property and that consequently the words of the section I have quoted could not apply to such a case.
3. Then it was argued by the learned Advocate for the appellant that this would be then a case where she has no remedy at all. That, however, is not the point for my consideration; I have now only to consider and decide the only point before me, whether she is entitled to restitution under Section 144. It was pressed upon me that the justice of the case required that Section 144 should be very liberally construed. I am anxious to help her to the extent to which I can legitimately go having regard to the wordings of Section 144, Civil Procedure Code. It appears to me that in such cases, the appellant's counsel ought to have drawn attention to the fact when her appeal in the main suit was heard and decided by the Lower Appellate Court. If the attention of the Lower Appellate Court in the first appeal had been drawn to the fact that she had deposited the required amount into Court in proper time, and that she should accordingly be decreed mesne profits in respect of the item which was decreed to her by the Lower Appellate Court, then it is probable that the justice of the case would be considered by the Lower Appellate Court, and it would have, if it thought fit to do so, decreed her mesne profits also. The learned Advocate for the respondent drew my attention to two cases one reported in Baikuntha Nath Chattoraj v. Prosannamoyi Debi I.L.R. (1923) C. 324 and the other in Bhimana Gowd v. Siddalingana Gowd (1927) 27 L.W. 188. They support the contention urged on behalf of the respondent, hut it is unnecessary to discuss those cases in detail as I think that the appellant's case does not come within the wordings of the section. I therefore have no alternative but to dismiss this Civil Miscellaneous Second Appeal with costs.
4. The appellant's learned advocate, however, requested me to allow the application made by her to be converted into a plaint and asked me to exercise the rights given to the Court by Section 47, Civil Procedure Code. I think that the present is a case where I should grant her request. The petition filed by her will accordingly be treated as a plaint subject to her complying with the requisition that may be made by the first Court with reference to its form, and also Court-fee payable thereon. Of course I say nothing as regards the maintainability of the suit or the defence the other side may have with respect to the same. Those are matters that would have to be gone into after the plaint is registered and tried in the usual course.