1. We do not think that this is a case in which restitution can properly be ordered.
2. It appears that the appellant applied for letters of administration to the estate of one Mandakini Debi, and the respondent set up a will of the deceased. The movable properties in dispute were at that time in the possession of the respondent. The Court appointed a commissioner to make an inventory of the properties, and in the course of the proceedings she set up a title to many of the properties as belonging to herself. An inventory was made by the commissioner and the properties were locked up in a room under seal, the keys remaining with the commissioner. Letters of administration were granted to the appellant and probate of the will was refused to the respondent. On appeal by the respondent to the High Court the decision of the District Judge was reversed and probate of the will was ordered to be granted to the respondent. She then applied for removal of the seals and for delivery of the properties, belonging to the deceased under the terms of the will to her, and the District Judge made an order accordingly. The order of the High Court granting probate was, however, reversed by His Majesty in Council. The letters of administration to the appellant were thereupon restored, and the appellant applied for restitution of the properties to him. That has been disallowed by the Court below, and the appellant has preferred this appeal.
3. Now Section 144 of the Civil Procedure Code provides that, where and in so far a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. In the case of Jai Berhma v. Kedar Nath Marwari A.I.R. 1922 P.C. 269 the Judicial Committee observed : - 'It is the duty of the Court, under Section 144 of the Civil Procedure Code, to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Code to act rightly and fairly according to the circumstances towards all parties involved. As was said by Cairns, L.C. in Rodger v. Comptoir D'Escompte de Paris  L.R. 3 P.C. 465 : 'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.'
4. Now, in the present case, the properties were never in the possession of the appellant, they were not taken out of his possession and made over to the respondent under any decree or order of Court. They were in the possession of the respondent at the time, and it was because the respondent had opposed the commissioner in making an inventory of the articles that they were locked up in a room under seal, the keys remaining with the commissioner. That custody of the commissioner was removed upon the application of the respondent and the properties delivered to her upon the application of the respondent when the probate case was decided in her favour by the High Court. It is to be observed that no administrator pendente lite had been appointed by the Court.
5. The probate Court could not, after the decision of His Majesty in Council direct the properties to be made over to the appellant by way of restitution, because they had never been in his possession nor taken out of his possession. The appellant is in the same position which he would have occupied but for the order of the High Court which has been reversed by His Majesty in Council.
6. The contention of the appellant in the Court below and in this Court also) however, was that the respondent should be ordered to restore the properties to the custody of the commissioner after the disposal of the case by His Majesty in Council. But after the probate case was decided in favour of the respondent the probate Court became functus officio, and it could not resume custody of the properties merely because the order of the High Court was set aside by the Judicial Committee.
7. The best thing would have been to ascertain which properties belonged to the deceased Mandakini and which to the respondent. But the probate Court cannot enquire into, nor decide, any question of title to the properties and the question must be decided in other proceedings.
8. The respondent, it appears, had furnished security for Rs. 7,500 to cover the value of the movable properties,
9. In all these circumstances, we are unable to hold that the Court below was wrong in refusing restitution to the appellant as prayed for by him.
10. The appeal is accordingly dismissed, each party bearing its own costs in both Courts.