1. This is an appeal by a court-auction purchaser against an order by the learned District Judge of Chingleput directing him to pay mesne profits of Rs. 2914-8-6 to the judgment debtors in O. S. No. 6 of 1929. In execution of a mortgage decree in this suit for Rs. 18000 on a principal of about Rs. 11000 about 12 acres of land were brought to sale and purchased by the appellant for Rs. 4411 on 4-8-1937. An application, M. P. No. 453 of 1937 was made under Order 21, Rule 90, Civil P. C. for setting aside the court sale. During its pendency Act 4 of 1938 was passed and an application was made by the debtors under Section 19 to scale down the decree debt. M. P. No. 453 of 1937 was first heard and dismissed on 20-12-1940, and the court sale in favour of the appellant was confirmed whereupon he took possession through Court on 18-1-1941. The judgment-debtors filed an appeal, C. M. A. No. 10 of 1941. This was allowed in July 1942 by Wadsworth and Fatanjali Sastri JJ. and the order confirming the sale was set aside with a direction that the scaling down application should be disposed of in the first instance. This decision is incidentally reported In -- 'Velayudha Mudali v. Chengama Naidu', AIR 1942 Mad 727 (A). The decree was then scaled down to only Rs. 366. This sum was deposited by the judgment debtors and the sale set aside on 28-9-1943.
2. The auction purchaser's efforts in appeal failed and he ultimately surrendered possession on 16-1-1945. The mesne profits he has been directed to pay to the judgment-debtors cover the period of his possession from 12-1-19-11 to 16-1-1945 that is, a period of four years.
3. This application by the judgment-debtors was filed under Sections 47, 144 and 151, Civil P. C. They claimed Rs. 5000 as mesne profits, and in addition a sum of Rs. 900 as damages caused to the indigo vat and well by the autction purchaser. The application was hoard as regards maintainability by the Principal Subordinate Judge of Chingleput, Sri Ramaswsmi Goundar (now Ramaswami Goundar J.) who held that the application for mesne profits was maintainable and directed an enquiry. The present appeal is against the order passed by Sri P. N. Ramaswami, District Judge, (now Ramaswami J.) who estimated mesne profits at Rs. 2914-8-6.
4. Mr. Sivaprasada Rao for the appellant does not challenge the quantum of mesne profits. He contends that an application for mesne profits on these facts is not maintainable on the ground that the auction purchaser cannot be considered to be in wrongful and illegal possession of the property having obtained it on orders of a Court Which had confirmed the sale in his favour. He relied mainly on -- 'China Kondpyya v. Ramalinga Reddi', AIR 1942 Mad 271 (B), a decision by Wadsworth and Patanjali Sastri JJ: under Section 23 of Act 4 of 1938. That was a case in which the decree-holder himself purchased and obtained possession of an item of property on 18-2-1938. Act 4 of 1938 then came into force on 22-3-1938. The sale was set aside under Section 23 of the Act on 7-11-1938 and the decree scaled down. The judgment-debtors applied for redelivery and claimed that mesne profits should be adjusted towards the scaled down decree. The learned Bench negatived this relief. Wadsworth J. expressed the view that Act 4 of 1933 is an expropriatory measure, and that the process of expropriation should not proceed beyond that which is laid down either by the express language of the Act or by necessary Implication therefrom. The only consequence as laid down in Section 23 when such a sale is set aside Is that it 'shall be deemed not to have taken place at all'. Under Section 24, a purchaser shall be entitled to an order for re-payment of any purchase money paid by him against the person to whom it has been paid where a sale is set aside under Section 23 or Section 23-A. The view taken by Wadsworth J. was that in the absence of express provision that the judgment-debtor should be entitled to the profits of the land when the sale is set aside under Section 23, it was not possible to read any such provision into the Act by necessary implication. Patanjali Sastri J. as he then was observed that the question was by no means free from difficulty but agreed on the whole though not without some hesitation with the judgment of Wadsworth J. The present case is not on all fours with the decision cited. For one thing the application under Order 21, Rule 90, Civil P. C. to set aside the sale was not considered on its merits in appeal in C. M. A. No. 10 of 1941 before the High Court which directed the scaling down application to be disposed of first. On the present application there was also an attack by the auction purchaser that the scaling down of the debt to Rs. 366 only from about Rs. 18000 was the result of collusion between the decree-holders and the judgment-debtors.
5. It is difficult to lay down any hard and fast rule as regards the maintain ability of such an application for mesne profits in a case where a third party purchases property, enters into possession and enjoys it under specific orders of a Court which are subsequently set aside in appeal. So long ago as 1870 the Privy Council in -- 'Rodger v. Comptior D'Escompte de Paris', (1870) 3 PC 465 (C) said it is the duty of the Court
'to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.'
In such a case, as this, restitution is ordered not strictly under Section 144, but under the inherent power of the Court under Section 151, Civil P. C. This was the view taken by Venkataramana Rao J. in --'Radhabai v. Jagannatha Naidu', AIR 1937 Mad 694 (D), a decision which was before the learned Judge who decided the question of maintainability. Each case of restitution of this kind, as it appears to me requires to be determined by its own facts. In the present case the sale price paid by the auction purchaser, that is, Rs. 4411 was deposited on 4-8-1937 and lay in Court deposit till 16-1-45 the date on which the auction purchaser surrendered possession, that is for a period of eight years without earning any interest. It appears to be most inequitable to award mesne profits against the auction purchaser and to deny to him interest on his deposit, at six per cent simple interest per annum the interest roughly for eight years on Rs. 4411 would amount to Rs. 2117-4-0. If in an application under Order 21, Rule 90, the auction purchaser is himself shown to be a party to a fraud in publishing or conducting a sale in collusion with the decree-holder it would be a clear case for directing him to pay full mesne profits by way of restitution in the event of a dismissal of the application under Order 21, Rule 90 being set aside in appeal and the resulting confirmation of sale being set aside also on this ground. In my view this is not a case which is altogether covered by Section 23 of Act 4 of 1938 and I am unable to interpret the decision in -- AIR 1942 Mad 271 (B)' as depriving the Court of all discretion to award mesne profits in suitable cases. As I see it Sections 23 and 24 leave unimpaired the inherent right of the Court to see that any suitor before it is not injured by its own act or by a decision which is reversed by a Court of appeal when the party before it is a bona fide auction purchaser for valuable consideration. On the facts of this case I think it is just and equitable to award the judgment-debtors mesne profits estimated by the lower Court, but at the same time to allow to the auction purchaser interest of Rs. 2117-4-0 on his deposit. Six per cent solatium is just and adequate compensation for deprivation of the use of this money for this long period.
6. In the result the judgment-debtors will have a decree against the auction purchaser for Rs. 797 (excluding annas and pies) with interest at six per cent per annum from the date of this petition. In the circumstances I direct the parties to bear their own costs throughout.