Macpherson and Ameer Ali, JJ.
1. The facts as stated are these : Some of the plaintiff's land was sold in execution of a decree which had been made against him for costs, and was purchased by the defendant, the decree-holder. The decree was afterwards reversed and the plaintiff, who had got back his land, brought this suit to recover from the defendant the value of the crops which the defendant took while the land was in his possession. The defendant, in addition to denying that the plaintiff has any case on the merits, has contended from the first that Section 244 is a bar to the suit, and that a claim such as this can only be made to, and dealt with, by the Court executing the decree as a part of the execution proceedings.
2. Both the Courts have overruled this contention, and on the merits have given the plaintiff a decree, although not to the full extent of the claim. It is now contended, and this is the only contention in the appeal, that Section 244 is a positive bar to a separate suit, and that the Courts were wrong in holding that a separate suit would lie.
3. The cases seem clear on this point, that a Court executing a decree, which is afterwards reversed on appeal, has full power to restore to the judgment-debtor what was taken from him in the execution, and that it should, as far as possible, restore the parties to the position they were in before the decree was executed. So also it has been held that, when possession of land is given in execution of a decree which is afterwards reversed, the Court which executed the decree can, in addition to the restoration of the land, give mesne profits or compensation in respect of the time during which the person against whom the decree was executed was out of possession. See the cases of Mothoora Pershad Singh v. Sumbhoo Geer 19 W.R. 413, Lati Koer v. Sobhadra Kooer I.L.R. 3 Cal. 720 and Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484.
4. It is not so clear, however, whether the power is inherent in the Court, or whether it is exercised under Section 244 of the Code, or by way of execution of the Appellate Court's decree.
5. The case most strongly in appellant's favour is Mothoora Pershad Singh v. Sumbhoo Geer 19 W.R. 413: there certain property of the judgment-debtor was sold in execution of a decree for money which was afterwards modified in appeal; the sale proceeds did not amount to the full judgment-debt, as originally decreed, but exceeded the amount recoverable under the decree as modified in appeal. The judgment-debtor brought a suit against the judgment-creditor to recover the excess money, and it was held that the suit was not maintainable, and that his only remedy was under Section 11, Act XXIII of 1861, which was then in force. This case may, perhaps, be distinguished on the grounds that the whole decree was not, as here, set aside; that the language of Section 11, Act XXIII of 1861, which was relied on, was somewhat different from the language of Section 244; and that the suit was to get back what had been actually made over by the Court and not something incidental to that. The other cases cited, Hameeda v. Budhun 20 W.R. 238, Bama Soonduree Dabee v. Tarinee Kant Lahooree 20 W.R. 415, Duljeet Gorain v. Rewal Gorain 22 W.R. 435, and Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484, are also distinguished either on the facts, or on the ground that, although it is held that relief, such as is claimed in this suit, could be given by the Court executing the decree, it is not held that a separate suit forit could not be maintained. In the cases of Bama Soonduree Dabee v. Kant Lahooree 20 W.R. 415 and Duljeet Gorain v. Rewal Gorain 22 W.R. 435 the original decree was not altered, but it was found in the one that the decree-holder had taken in execution land which was in excess of the decree, and in the other that he had taken land which was not at all covered by the decree, and the relief asked for properly fell within the provision relating to the execution of decrees. In the case of Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484 Petheram, C. ,L, expressed a decided opinion that, although the Court executing the decree could, when restoring the land, give further relief in the form of mesne profits by way of restitution, the claim for that relief was not a matter which had to be disposed of under Section 244, and consequently that it might be made in a separate suit. The cases of Ram Roop Singh v. Sheo Golam Singh 25 W.R. 327 and Ram Gghulam v. Dwarka Rai I.L.R. 7 All. 170 also show that a suit such as the present one is maintainable.
6. Unless the question to be decided in this suit is one which clearly related , to the execution, discharge, or satisfaction of the decree, the suit is not prohibited by Section 244. It did not, we think, relate to the execution, discharge, or satisfaction of the original decree within the meaning of Section 244, because it did not arise at all until that decree had ceased to exist. Section 583 provides that the decree of an Appellate Court, by which a party is entitled to any benefit (by way of restitution or otherwise), is to be executed on the application of the person entitled to the benefit by the Court which passed the decree against which the appeal was preferred. Could therefore the plaintiff have got what he now seeks to get in execution of the decree of the Appellate Court which simply reversed the decree of the first Court? Conceding that the reversal carried with it a right to the restitution of what had actually been made over under the decree reversed, and that on the authority of the cases cited, the Court executing the appellate decree could have given the relief now asked for, on the general principle that the parties are to be restored as far as possible to the position they before occupied, we think that the plaintiff was not restricted to that particular way of getting it. The decree of the Appellate Court did not direct that this particular relief should be given, nor did it direct that any enquiry should be made in connection with it: the plaintiff did not ask the execution Court to give him this relief, and the question whether he was entitled to it can hardly be regarded as one relating to the execution, discharge, or satisfaction of that decree.
7. We think, therefore, that the Courts have rightly held that the suit is maintainable, and that the appeal must be dismissed with costs.