1. This appeal is by the plaintiffs in a suit for damages for money said to have been twice recovered from them by the defendant. The facts of the case are as follows : The plaintiffs held three different tenancies under the defendant. Thre6 suits for rent were instituted for arrears of these tenancies-and decrees were obtained in these suits. The total amount due under these decrees was Rs. 495 odd. The plaintiffs-then sued the defendant and two other persons for recovery of possession of two of these tenancies and for mesne profits and obtained a decree in the first Court, namely, in the Court of the Subordinate Judge and the defendant who is the respondent before us appealed. The decree of the lower Court was varied by this-Court only on the question of the liability of the present defendant to the mesne profits granted under the decree. The relevant portion of that decree is as follows:
It is ordered and decreed that the decree of the Court below, dated the 14th August 1917, in so far as it makes defendant 3 (the present respondent) liable for the amount of mesne profits allowed to the plaintiff be set aside and in lieu thereof it is ordered and decreed that the-suit of the plaintiff against defendant 3 in respect of such profits be dismissed. And it is-further ordered and decreed than the plaintiffs-respondont3 do pay to the defendant-appellant the sum of Hi. 925-13-0, being the amount of costs incurred by him in this Court with interest, etc.
2. The decree of this Court was dated the 5th March 1919. The plaintiff made three payments between the-11th July and the 1st November totalling Rs. 740, and again on the 18tb March 1920, they paid Rs. 825, and they made a further payment of Rs. 95, on the 24th June 1920. The-defendant appropriated the sum of Rs. 777-7-0, to himself as due to him on' account of costs in the first Court in the' suit for possession which had been instituted against him by the plaintiffs. The plaintiffs dispute the defendant's right to recover this money. The defendant then executed his decrees for arrears of rent and recovered a sum of Rs. 593, odd. The plaintiffs, therefore, sued for recovery of this amount together with damages making a claim for Rs. 820. The Court of first instance decreed the suit in part for Rs. 593, odd together with interest at the rate of 1 per cent, per month to run from the dates of the realization of the sums which make up1 the total of Rs. 593 odd. The lower appellate Court reversed the decree of the first Court holding that the sum of Rs. 777-7-0, was due to the defendant as-the result of the decree of this Court dated the 5th March 1919.
3. The main question for decision in this appeal is whether or not under the decree above referred to the amount of Rs. 777-7-0 was due to the defendant. The ground on which the learned Subordinate Judge has proceeded, which is also the ground on which his decision is supported, is that the decree of the first Court was reversed as against the defendant and that by implication the costs incurred by the defendant in the suit were recoverable by him. This contention is not maintainable. The suit was not merely for recovery of mesne profits. It was also for recovery of possession on declaration of title. If the entire decree had been reversed in that case it would follow by implication that the defendant in the suit would be entitled to recover the costs incurred by him in defending the suit. In the present case only that portion of the decree which related to mesne profits was set aside as against the defendant. The remainder of the decree was not appealed against and remained good. In such circumstances unless there is an express order by the appellate Court allowing the defendant to recover costs incurred by him in the first Court it must be held that these costs could not be recovered. Therefore, the amount of Rs. 777-7-0, which the defendant appropriated to himself as money due to him was not a lawful debt within the meaning of Sections 59 and 60 Contract Act, and it is not open to the defendant to appropriate this sum to himself as money legally due to him.
4. Accordingly the judgment and decree of the lower appellate Court are reversed and those of the Court of first instance restored with costs throughout.
5. I agree.