T. Sathiadev, J.
1. This appeal is preferred against a common order made in C.M.A. Nos. 121 and 126 of 1974 on the file of the District Court, Tiruchirapalli. The appeal was admitted on two substantial questions of law which are as follows:
(1) Whether the respondent is entitled to possession by way of restitution without paying the amount which the appellant paid for setting aside the Court sale in respect of item 2.
(2) Whether the appellant is entitled to deduct kist and Municipal taxes out of the income from items 1 and 2.
The second defendant in O.S. No. 66 of 1948. filed a petition under Section 144(1) of Civil Procedure Code, for delivery of the property and for restitution. It appears that one Rathinam Pillai, who was the respondent in E.P. No. 247 of 1972 in O.S No. 66 of 1948 and who was the plaintiff in this suit, purchased the properties involved in these proceedings in Court auction held on 17th August, 1955, he being the decree holder in O.S. No. 66 of 1948. Two items are involved and the first item is an extent of 73 cents of wet lands in Koothappar village and item No. 2 is a house property situate in Tiruchirapalli town. The second defendant, soon after the Court-auction-sale held on 17th August, 1955, filed a petition to set aside the sale and the matter came up to the High Court and ultimately the sale was set aside. Thereafter in execution, the properties were delivered to the second defendant and he had come forward to claim the income derived from these properties during the period, when it was in the possession of the Court-auction-purchaser. There is no dispute between the parties that the house property was taken possession of by the Court-auction-purchaser on 2nd August, 1956 and it was delivered back to the second defendant on 5th October, 1974 and that the lands were taken possession of on 10th August, 1966 and delivered back to the second defendant on 25th August, 1974. The trial Court had taken into account the income derived from the respective properties and came to the conclusion that so far as the lands are concerned, for the period of 8 years, admittedly the rent for each year being 12 kalams of paddy, the rate being Rs. 16.50 as fixed by the Government, the total amount that will be due to the second defendant will be Rs. 1,584.
2 Counsel for the appellant contends that during the period, a sum of Rs. 196.69 had been paid towards kist and this amount should have been deducted. Equally so, with regard to the house property, the period involved is seventeen years and six months and the Appellate Court had come to the conclusion that Rs. 25 per mensem will be a proper assessment of the income derived from the property and the total amount payable is Rs. 5,230. Here-again the contention of the appellant is to the effect that the house-tax for the period had been paid amounting to Rs 151.50 and it is not being disputed, Further it was claimed that the house had been electrified and water tap connection also secured and on these accounts, he had spent a sum of Rs. 2.000. But it has not been deducted. Apart from this, a further deduction, to the extent of Rs. 2,207.24 has been claimed representing the amount paid by the Court-auction-purchaser to discharge a mortgage decree over the property and as proved by Exhibit B-58.
3. The Appellate Court had disallowed all the deductions claimed by the Court-auction-purchaser on the ground that the Court-auction-purchaser had not chosen to file any application under Section 144 of Civil Procedure Code, and in an application filed by the second defendant under Section 144 of Civil Procedure Code, it is not open to the Court to grant any relief in respect of the deductions claimed as stated above. Further it had taken into account that the improvements, if any, made, had been done with the full knowledge of the application tiled by the second defendant to set aside the Court-auction-sale immediately after it was held on 17th August, 1955 and therefore he has made the improvements at his own risk and he cannot claim any deductions for improvements.
4. About the mortgage amount paid, it had come to the same conclusion that it is open to the Court-suction-purchaser to take out independent proceedings for recovery of those amounts.
5. The first aspect that requires to be considered is whether the appellant herein can maintain a separate application under Section 144 of Civil Procedure Code. The reasonings adopted by the lower Appellate Court, cannot be accepted, because there can be no question of a Court-auction-purchaser asking for restitution when he is bound to deliver back possession of the property to the person who has secured the order for restitution. There is no scope under Section 144 of Civil Procedure Code, for a Court-auction-purchaser to file a restitution petition under such circumstances.
6. The next point is whether in an application under Section 144 of Civil Procedure Code, taken by a party who had secured orders of Court for restitution of properties, the deductions as claimed in this matter, can be allowed or not. The Court below had relied upon the decision in Anusuya Bai v. Ramaiah Raju A.I.R. 1961 Mys. 238, to reject the claim for deductions. But I do not think that the deductions claimed can be so disallowed because, to render justice between the parties, the Court can pass equitable orders under Section 144 of Civil Procedure Code.
7. In Pappu v. Ramanatha : (1962)2MLJ362 a Full Bench of this Court, dealing with the relief to be granted under Section 144, Civil Procedure Code., has held:
Restitution, conceived in the light of doing justice between the parties, will necessarily have to depend on the facts and circumstances of each case and cannot be reduced to the form of an inflexible rule that Courts should have regard only to the detriment suffered by one party and not to the position of the other. The granting of restitution under Section 144, Civil Procedure Code, should be consistent with justice to both the parties.
8. In this context, it will be useful to refer to the definition of the word 'Mesne profits' in Section 2(12) of Civil Procedure Code, wherein it has been stated that it shall not include profits due to improvements made by the person in wrongful possession. In Ranga Rao v. Ramadass : AIR1959AP182 it has been held that the expression 'mesne profits' as used in Section 144, Civil Procedure Code, has no different connotation from that of Section 2(12) of the Civil Procedure Code and that the party dispossessed can get only such mesne profits for the period during which he was out of possession and the amount can only consist of what the person in wrongful possession of such property actually received or with ordinary diligence could have received therefrom. Therefore, merely because the second defendant had filed the application under Section 144, Civil Procedure Code, for restitution, it cannot be said that the Court-auction-purchaser in such an application cannot plead that certain deductions require to be made and that he should file separate application for such of those claims to which he may be entitled to. As already stated there can be no question of the Court-auction-purchaser filing an application under Section 144, Civil Procedure Code, for restitution in respect of the amounts which he requires to be deducted.
9. Based on the Full Bench decision, I come to the conclusion that in a proceeding under Section 144, Civil Procedure Code, for the purpose of doing justice to both the parties, the Court can go into the question of finding out what can be the mesne profits which the person in possession could have got and in doing so the amounts which necessarily have to be expended in respect of such properties, can be deducted. In this case, in respect of the agricultural lands, a sum of Rs. 1 6.69 had been paid towards kist, and this being a public demand, necessarily it goes with the property, and to this extent, a deduction should have been made from and out of the mesne profits of Rs. 1,584 derived from this property.
10. Regarding the house property, there is no dispute that house-tax to the extent of Rs. 151.50 had been paid. It is observed by the Court below that the Court-auction-purchaser having been in possession of the house property for a certain period, he has to necessarily pay the house taxes. I do not see any substance in this approach. Taking into account the taxes paid and other expenses, it has arrived at a flat rate of Rs, 25 per mensem. Here-again, it is seen that the proceedings in S.C. No. 171 of 1971 has been taken as the basis and if it is to be relied upon, the flat rate of Rs. 25 per mensem arrived at is correct. But from and out of the total amount of Rs. 5,250 a sum of Rs 151.50 paid by way of house tax has to be deducted.
11. Regarding the claim of improvements, though it was claimed that a sum of Rs. 2,000 had been spent for electrification and for getting tap connection, no relief can be granted because, as pointed out by the Appellate Court, will full knowledge of the application filed to set aside the Court's sale, these improvements have been effected and in such contingency, no deductions can be made. Yet another contention taken is to the effect that the rents derived from the house property, had increased only due to the improvements, and but for that, the house property would have derived only a lesser rent. This is based upon the definition of the word 'mesne profits' in Section 2(12) of the Code of Civil Procedure. But since there is no clear evidence on this aspect, no relief can be granted.
12. The next claim is about the discharge of a mortgage in respect of the suit property by the Court-auction-purchaser and a deduction of Rs. 2,207.24 is asked for. It will be seen that this is not a voluntary payment. He was compelled to pay this amount since this property was brought to sale by the mortgagee in O.S. No. 131 of 1967 and it was sold in Court-auction on 24th August, 1960. A petition to set aside the sale was filed and it is thereafter the Court-auction-purchaser herein had paid the amount and therefore to this extent, the Court-auction-purchaser can ask for a deduction to be made from and out of the amounts he is liable to pay. Though the order of the Appellate Court refers to Exhibit B-58 and though the Appellate Court holds that a sum of Rs. 2,207.24 had been paid, in the said exhibit, it only refers to a payment of Rs. l,81l. Counsel for the appellant claims that apart from the amount mentioned in Exhibit B-58, he had also spent amounts on poundage and other expenses. But I do not think that at this stage, this Court should go into that aspect and find out whether the expenses alleged to have been spent, has been actually incurred or not. Counsel for the appellant asked for the matter to be remanded for finding out the amount. But I do not think that it is necessary to remand the matter for this purpose because the Appellate Court itself had relied upon Exhibit B-58 and whatever be the amount mentioned therein, that amount alone will be deductible. Hence to render justice between the parties, as laid down in the Full Bench decision of this Court, from and out of the amount that has been arrived at as payable by the Court-auction-purchaser, the following amounts will be deductible.
1. Kist paid in respect of the lands 196. 69
2. House tax paid and not disputed 151 50
3. The amount paid and under
Ex. B. 58 1,811 00
The balance of the amount has to be paid by the Court-auction-purchaser and to this etxtent this appeal is allowed. No costs.