Ghose and Gordon, JJ.
1. The facts out of which this appeal arises are shortly these: One Raja Singh and some other individuals brought a suit against Kooldip Narain Singh and others for recovery of possession of certain property, and obtained a decree in the Court of First Instance. The defendants appealed to the higher Court, but during the pendency of the appeal the plaintiffs took possession of the property in question in execution of the decree of the first Court. The appeal was ultimately decreed in favour of the defendants, and thereupon they were restored to possession; and they subsequently applied to the Court for recovery of mesne profits from the plaintiffs for the period during which the latter were unlawfully in possession.
2. The contention that seems to have been raised in the Courts below was whether the defendants, decree-holders, were entitled to recover mesne profits from the plaintiffs in execution of the decree of the Appellate Court under Section 244 of the Code, or whether their only remedy was not to bring a separate suit for that relief.
3. The learned District Judge has held, in reversal of the order of the Court of First Instance, that the mesne profits in question might be recovered either under Section 244 or by a separate suit; and he has accordingly held that the defendants, decree-holders, were entitled to recover mesne profits from the plaintiff's in execution of the decree of the Appellate Court.
4. Several cases were referred to by the learned vakils on either side in the course of the argument before us, and we have consulted various other cases upon the subject.
5. In the case of Hurro Chunder Roy Chowdhry v. Sooradhoonee Dabea B.L.R. Sup. Vol. 985 : 9 W.R. 402 decided by a Full Bench of this Court, Sir Barnes Peacock observed that upon a decree for possession being reversed in appeal by the Appellate Court, it is competent to the Court to cause restitution to be made of all that the party against whom the erroneous decree had been enforced was deprived by such enforcement. The immediate question in that case was no doubt different from that which we have to consider in the present case; but it was such that the Full Bench had necessarily to consider what may be the relief, which a successful appellant is entitled to by way of restitution. Sir BARNES PEACOCK, in the course of his judgment, observed as follows: 'The decree of reversal necessarily carries with it the right to restitution of all that has been taken under the erroneous decree in the same manner as an ordinary decree carries with it a right to have it executed; and I should have considered that a decree of reversal necessarily authorized the lower Court to cause restitution to be made of all that the party against whom the erroneous decree had been enforced had been deprived by reason of its having been enforced. The Sudder Court ordered that the lands were to remain with the plaintiff. It did not order the lands to be restored to her; but the necessary consequence was that restitution was to be made, and restitution of the lands was made by the Principal Sudder Amin without any objection. There seems to be no reason why he should not have restored to the plaintiff the rents and profits of which she was deprived during the time she was kept out of possession of her land under the erroneous decree.'
6. This principle seems to have been accepted and followed in Shib Narayan Pohraj v. Kishore Narayan Pohraj l B.L.R. A.C. 146 : 10 W.R. 131; Hamida v. Bhudhun 20 W.R. 238; Ununt Ram Hazrah v. Kuralee Pershad Mistree 23 W.R. 441; Lati Kooer v. Sobadra Kooer I.L.R. 3 Cal. 720; and Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484. And it seems to have been uniformly held in this Court that a Court reversing a decree, under which possession of property had been taken, has power to order restitution of the property taken possession of, and with it any mesne profits which may have accrued during such possession.
7. The learned vakil for the appellant, however, relied upon the Full Bench decision of the Allahabad High Court in the case of Bam Ghulam v. Dwarka Rai I.L.R. 10 All. 170, which no doubt may at first sight appear to have taken a contrary view, but upon closer examination it will be found that it is not so. There, the plaintiff had sought for possession of certain immoveable property, and obtained a decree, and in execution of that decree obtained possession. The decree was subsequently reversed on appeal by the defendant. The decree of the Appellate Court was silent in respect of mesne profits, which the plaintiff had received while in possession, and the defendant instituted a suit to recover such profits. The question which seems to have been discussed in that case was whether the suit was not barred by Section 244 of the Code of Civil Procedure, and it was held by Petheram, C.J., and the other Judges who composed the Full Bench, that the suit was not so barred. The Chief Justice, however, expressed a doubt whether the defendant, the successful appellant, could have recovered mesne profits in execution of his decree, and he was of opinion that, although the question before the Court arose out of the decree, it did not relate to the execution, discharge or satisfaction of the decree,' within the meaning of Section 244. What we understand was really decided in that case was that the suit for the recovery of the mesne profits was not barred by the provisions of Section 244 of the Code The case of Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484, to which we have already referred, came before Petherram, C.J., and Ghose, J.; and the Chief Justice, in delivering the judgment of the Court, and with reference to the Full Bench decision of the Allahabad High Court in the case of Bam Ghulam v. Dwarka Rai I.L.R. 10 All. 170, observed as follows: '' A decision of the Allahabad High Court, in which I took part, has been cited, in which it was held that the section of the Code does not prevent the person who has been wrongfully deprived of his property by this proceeding from bringing an action to recover the profits during the time he has been wrongfully kept out of possession, and speaking for myself I still adhere to the opinion which I then expressed that such an action may be maintained.' And later on, with reference to the question whether the defendant in that suit was entitled by way of restitution to the mesne profits, which the plaintiff had recovered during the time when he was in unlawful possession, the learned Chief Justice observed as follows: 'But if such an action can be maintained, it by no means follows that the Court, which has given possession under the wrong decree, which has afterwards been cancelled, cannot order restitution of the property which has been wrongfully taken, and any mesne profits which may have been derived from it in the meantime. Speaking for myself 1 do not think that this restitution is a proceeding which comes within the meaning of Section 244 of the Code of Civil Procedure, but I think it is an inherent right in the Court itself to prevent its proceedings being made any cause of injustice or oppression to any one, and therefore it seems to me that that inherent right does exist, and that the Court has power under that inherent right to order restitution of the thing which has been improperly taken, and as a part of that power it must have the right and the power to order restitution of everything which has been improperly taken. If they have that power, they have the power not only to order restitution of the property itself, but restitution of any proceeds which have been improperly taken during the time that it was in the possession of the person who was not entitled to it. These proceeds which have been received are the mesne profits of the property, and, therefore, it seems to me, it being admitted that there is a power in the Courts to order restitution of the property, it must follow that they have the power to order restitution of the mesne profits.'
8. The result in that case was that the defendant was held entitled by way of restitution to obtain the mesne profits which the plaintiff had realized during the time that he was in unlawful possession of the property under the decree which was set aside on appeal.
9. We may in this connection refer to two other cases which were decided by the Privy Council. In Rodger v. Comptoir d' Escompte de Paris L.R. 3 P.C. 465 where money had been paid under a decree which was subsequently reversed on appeal, the Privy Council held that the successful appellant was entitled to a refund of the money with interest for the period during which the said money was unlawfully in the hands of the plaintiff. The Judicial Committee in delivering judgment observed as follows: 'It is contended, on the part of the respondents here, that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury, will be done to the petitioners. They will, by reason of an act of the Court, have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the petitioners and that the perfect judicial determination, which it must be the object of all Courts to arrive at, will not have been arrived at, unless the persons who have had their money improperly taken from them have the money restored to them, with interest during the time that the money has been withheld.' And later on they observed: 'Their Lordships have reason to believe that the practice of the Courts in India, when there has been a reversal in this country, and when money has been ordered in India to be paid back in consequence of that reversal, is to order the payment of interest. Their Lordships, therefore, so far as any precedents applicable to the case are concerned, believe that the precedents will be found in favour of a restitution of the money with interest.' In the case of Shnma Pershad Roy Chowdhry v. Hurro Pershad Boy Chowdhry 10 Moo. I.A. 203, where money had been paid under a decree which was reversed on appeal, it was held that it was recoverable either by a new suit or by summary precess, and the Judicial Committee ordered the money to be refunded, with interest from the date of payment, to the plaintiff. These cases no doubt are not parallel to the case we have before us, but the principle which underlies them is, we think, equally applicable to this case.
10. It may, we think, be well doubted whether this restitution could be had under the provisions of Section 244 of the Code of Civil Procedure. Indeed, we are inclined to think that the wording of that section does not cover it. There is, however, another section of the Code of Civil Procedure under which the restitution might probably be had, and that is Section 583. It runs as follows: 'When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits.' And we observe that in the case of Kalianasundram v. Egnavedeswara I.L.R. 11 Mad. 261, the Madras High Court has approvingly quoted the decision of this Court in Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484, and has held that mesne profits could be recovered in execution by way of restitution under Section 583 of the Code. We also observe that the Bombay High Court, in the case of Balvantrav Oze v. Sadrudin I.L.R. 13 Bom. 485, has held that the procedure provided by Section 583 of the Code is not confined to cases where the restitution desired is provided for by the decree itself.
11. It follows from all the cases that we have referred to that the successful appellant is entitled by way of restitution to the mesne profits recovered by the plaintiff during the time of his unlawful possession, by an application in the suit itself, whether it be by reason of the power conferred upon the Court which made the decree under Section 583, as held by the Madras High Court, or by reason of the inherent right that the Court has to order restitution of the thing which has been improperly taken under the erroneous decree set aside in appeal, as held by Petherram, C.J., in Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah I.L.R. 14 Cal. 484. As we have already said the cases in this Court are all in one way, and therefore it is now too late to ask us to disturb the current of rulings upon the subject.
12. The result is that this appeal will be dismissed with costs.