JUDGMENT

Wadsworth, J.—This appeal raises a question of restitution and has been referred to me on a difference of opinion between Burn and Stodart, JJ., on two points.

(1) The question of the applicability of S. 144, Civil Procedure Code, and (2) the question of the liability of the defendant's legal representative (first respondent herein) to make a restitution, if S. 144, Civil Procedure Code, applies.

The facts of the case have been fully set forth in the judgments of my learned brothers and it is unnecessary to repeat them at length. The essential points are that the plaintiff sued for possession of his estate from the husband of the present first respondent and in the Subordinate Judge's Court, he succeeded, the decree being dated 20th December, 1922. The defendant appealed to the High Court and in that appeal, a receiver was appointed who took charge of the estate in April, 1923, the plaintiff not having got possession meanwhile. The defendant died in 1925 and his widow (the present first respondent) carried on the appeal. On 30th March 1928 the High Court reversed the trial Court's decree. The plaintiff preferred an appeal to the Privy Council and asked that the receiver should continue in possession of the estate. But this prayer was refused and the widow obtained possession from the receiver. On 1st November, 1932, the Privy Council set aside the decree of the High Court and restored the decree of the Subordinate Judge. Immediately after this decree was passed, the first respondent was herself appointed receiver pending receipt of the formal order in Council and the appellant got possession in March, 1933. The appellant claims restitution in the shape of profits of the estate for the period from April, 1929, when the first respondent took possession from the receiver, to December, 1932, when she was herself appointed receiver. The profits of the estate, after allowing ordinary charges, amount to approximately Rs. 1,30,000 for this period.

The first respondent contended, firstly, that there could be no order for restitution in the circumstances of the case, and, secondly that she was entitled to appropriate the profits to the amount due to her under the High Court's orders whereby the receiver was directed to pay to each party a monthly maintenance of Rs. 1,500 and she claims that she is entitled to set-off, against the surplus, the arrears of this maintenance for the period during which the receiver was in charge and a monthly allowance of Rs. 1,500 for the period during which she herself had possession of the estate. It has to be observed that pending the appeal to the Privy Council, the first respondent was required to pay a reduced maintenance of Rs. 500 per mensem to the plaintiff and she was directed to pay the arrears due to him under the previous order as the balances in her hands permitted and she did in fact pay certain sums towards the arrears.

The learned Judges who referred this appeal, are agreed on certain points. They agree that the order of Krishnan, J., fixing for each party a monthly maintenance allowance of Rs. 1,500 cannot be regarded as anything more than a provisional arrangement to be in force during the pendency of the appeal. They are also agreed that the respondent cannot claim in these proceedings a right to appropriate maintenance under any common law right which she may have so that she must stand or fall by the order of the High Court fixing her maintenance. There is a further fact which has to be stated. The suit originally included a claim for past and future mesne profits, but no issue was framed in this respect and the trial Judge held that the claim for mesne profits had been given up. Before the High Court there was cross-appeal by the plaintiff on the subject of mesne profits which was dismissed. The judgment of the Privy Council does not deal expressly with the claim for mesne profits, but since the decree of the trial Court is restored, it must be taken that no mesne profits were awarded in the suit.

The view taken by Burn, J., is, firstly, that S. 144, Civil Procedure Code, does not apply because the possession which the first respondent got after the High Court's decree was neither under that decree nor properly consequential upon that decree; secondly, that even if S. 144 does apply, the most that could be claimed would be the restoration of any benefit accruing to the first respondent on the basis of the continuance of the position which obtained immediately before the wrong decree was passed; therefore one must postulate the continuance of the provisional orders which would justify the appropriation by the first respondent of the amounts to which she was entitled under the orders, so that nothing would be left which could be called a benefit returnable; and thirdly, that the refusal of future mesne profits in the decree of the trial Court which the Privy Council has restored, bars the claim by way of restitution for any sum out of the profits of the estate during the first respondent's possession. Stodart, J., has taken a contrary view on all these points.

I will deal firstly with the question of the applicability of S. 144, a matter which seems to be covered by the decision in Bishweshwar Pratap Narayan Sahi v. Chandreshwar Prasad Narayan Singh (1), discussed by both the learned referring Judges. In that case, a receiver was appointed pending a suit for possession of land. After the decree, the successful party obtained possession from the receiver. The decree was reversed in appeal. The appellant applied for restitution. Objection was taken that the appellant was not entitled to get the property back by way of restitution because it was the receiver who had been dispossessed and not the appellant. It was held that the appellant could get the property back, since the possession of the receiver was for the benefit of the person entitled to the property. Burn, J., distinguishes this case on the ground that the wrong decree was actually executed and the receiver was therefore dispossessed under the decree and he points out that there can be no doubt that the order for restoration of possession was one properly consequential on the variation of the erroneous decree. He points out that in order to justify restitution, it must be shown that property has been received by the decree-holder in execution of a wrongful decree or directly in consequence of that decree. My learned brother holds the view that the possession obtained by the first respondent in the present case was not possession in execution of the decree, nor under any explicit direction contained in the wrong decree and that it must therefore be held to be only indirectly consequential on the wrong decree, so that it cannot form the basis for an order for restitution. With the greatest respect, I find myself unable to agree with this conclusion and I am of opinion that Stodart, J., is right in holding that not only was the possession of the receiver the possession of the plaintiff who is ultimately found entitled to the property, but also that the dispossession of the receiver was directly consequential on the wrong decree. It is true that the High Court's decree merely reverses the decree for possession given by the Subordinate Judge and it is true that the 1st respondent got possession after some little delay as a result of the refusal of the appellant's application to continue the receiver pending the appeal to the Privy Council. But I am unable to subscribe to the view that restitution should not be ordered unless the possession is got as a result of either the execution of the decree or an explicit order contained in the wrong decree. When, as in this case, the property in dispute is held by the Court's receiver, it is unnecessary for the decree to contain a direction to the receiver to hand over the property to the successful party. The receiver will automatically transfer possession to the party who succeeds in the suit and the fact that the transfer is made without the execution of the decree and without any explicit order in the decree, will not, to my mind, alter the fact that possession is, in fact, given under the decree. The surrender of possession by the receiver on the termination of the appeal is the inevitable consequence of the decree passed in the appeal. It seems to me therefore, with great respect, that the distinction which my learned brother Burn, J., seeks to apply in dealing with the case in Bishweshwar Pratap Narayan Sahi v. Chandreshwar Prasad Narayan Singh , is fallacious.

An attempt has been made before me to make a further distinction based on the ground that in the Patna case, the party who got possession under the wrongful decree could trace that possession to no other source than the decree which was set aside, whereas in the present case the 1st respondent who succeeded in the High Court was the widow of the party originally in possession before the litigation started who had continued in possession right up to the time when the receiver was appointed. It is argued, therefore, that the 1st respondent's possession, obtained from the receiver, was nothing more than the restoration of the possession which her husband had before the appointment of a receiver. It seems to me that this argument is specious. The point of time for determining a right to restitution is not the inception of the proceedings resulting in the wrong decree, but the point of time immediately before the wrong decree. This is clear from the words “place the parties in the position which they would have occupied but for such decree.” They are not to be placed in the position which they occupied at the beginning of the litigation, but in the position which they occupied just before the wrong decree was passed. When once it is conceded, as I think it must be, that the possession of the receiver at the time when the High Court's decree was passed, was the possession of the plaintiff who ultimately succeeded before the Privy Council, it does not seem to me to matter that the plaintiff did not get possession after the trial Court's decree or that the defendant continued in possession up to the time of the appointment of the receiver. The important question is, who was in possession before the wrong decree was passed. The answer to that question is that the receiver was in possession on behalf of the person who would ultimately be found entitled, that is to say, on behalf of the plaintiff. The receiver surrendered possession to the 1st respondent, not because he had taken possession from the original defendant but because the 1st respondent had been declared entitled by the erroneous decree. It follows therefore, that his possession, which was constructively the possession of the plaintiff, terminated and the defendant got possession directly in consequence of the erroneous decree of the High Court, reversing the trial Court's decree. It seems to me, therefore, that S. 144 applies in terms and that the plaintiff is entitled to claim restitution of any profits realised by the defendant's legal representative which can be called properly consequential upon the wrong decree, unless the defendant's legal representative is entitled to resist the claim either by showing that she has a superior claim to those profits or by showing that the plaintiff's claim is barred by reason of the failure to establish his right to future profits in the trial Court.

This leads to the next question as to the extent of the defendant's legal representative's liability by way of restitution and involves a consideration of the precise meaning of the words “place the parties in the position which they would have occupied but for such a decree”, occurring in S. 144, Civil Procedure Code. It seems to me that there are three possible ways of interpreting these words. The words might mean that the parties are to be put in the position they would have occupied had the right decree been passed instead of the wrong decree; or, secondly, they may mean that the parties are to be put in the position that they would have occupied had no decree at all been passed; or the words may mean simply that the parties are to be put in the position which they would have occupied had it not been that a wrong decree had been passed. It seems to me that the last interpretation is the correct one. There is nothing in the words of S. 144 to justify the conclusion that it was the intention of the Code to give to the person claiming restitution any better position than that which he occupied at the time when the wrong decree was passed and this is what has to be inferred if we are to take it that he has to be put in the position which he would have occupied had the right decree been passed. Similarly I do not think that it can be said that the person claiming restitution must base his claim on the theory that he is entitled only to what he would have got had there been no decree at all and had the proceedings been pending right up to the time when the final decision set the matter at rest. It seems to me to be going too far to postulate, for purposes of restitution, the continuation of the proceedings until terminated by the right decree, more especially if we are to postulate also the continuation of all incidental orders passed during the pendency of those proceedings. The correct procedure seems to me to be to take the position as it stood immediately before the wrong decree, to find out what would be the position of the ultimately successful party as on that date, having regard to the fact that the proceedings terminated and to award to the successful party restitution in the shape of any profits wrongfully received under the erroneous decree or as a direct consequence thereof.

In any view it seems to me that it is impossible to hold on the facts of the present case that the defendant's legal representative would be entitled to appropriate the whole of the amounts due to her both for arrears and for future maintenance on the basis of the continuation of the provisional orders passed pending the High Court appeal, without regard to the fact that those orders recognised similar rights in the plaintiff. But I am of opinion that the correct view is that which has been taken by my learned brother Stodart, J. namely, that one must regard the possession of the receiver immediately before the erroneous decree as the possession of the plaintiff who is found ultimately to be entitled. One must treat these provisional orders passed purely for the purpose of appeal before the High Court as having terminated on the termination of that appeal and one must award to the plaintiff the profits wrongfully received by the defendant's legal representative as a result of dispossession of the receiver, as representing the plaintiff, without any adjustment in respect of payments which could only be made on the assumption of the continuance of the provisional orders, which automatically came to an end on the termination of the appeal before the High Court. That is to say, the plaintiff is entitled to restitution on the basis of the position immediately before the wrong decree and on the assumption that orders made with reference to the pending appeal came to an end on the termination of that appeal.

There remains the question whether the plaintiff's claim to restitution is barred by reason of his failure to get a decree for future mesne profits in the original Court. On this part of the case, the respondent relies on the decision in Bhimana Gowd v. Siddalinga Gowd which was to the effect that when in a suit for partition and possession, there was no prayer for mesne profits, mesne profits could not be claimed by way of restitution when the original order, dispossessing the claimants, was set aside. This decision would be authority for the view that the plaintiff would not claim by way of restitution mesne profits for the period anterior to the date on which the receiver got possession constructively for the plaintiff. But when the receiver got possession, there was really no scope for any execution by the plaintiff either in respect of possession or in respect of profits. Thereafter the possession of the receiver was the possession of the plaintiff and no question of future mesne profits could arise. The High Court having passed an erroneous decree as a result of which the receiver was dispossessed and the first respondent was put into possession, the profits which accrued to the defendant's legal representative as a result of this erroneous decree are not in my opinion, profits which could have been claimed in the original suit. They were profits flowing directly from the erroneous appellate decree, recoverable only by restitution and not such as could have been foreseen in drafting the original plaint. The position is just the same as it would have been had the plaintiff executed his decree and got possession during the pendency of the High Court appeal and being dispossessed as a consequence of his failure in that appeal. After such dispossession, profits accruing to defendant's legal representative would not be recoverable as future mesne profits claimed in the suit, but by way of restitution owing to the wrongful decree. It seems to me, therefore, that there is no bar to the plaintiff's claim by reason of his failure to get a decree for future mesne profits before the trial Court.

In the result therefore, I find, agreeing with my learned brother Stodart, J., that the appeal must be allowed and the plaintiff be given a decree for restitution of a sum of Rs. 1,30,476 from the defendant's legal representative with costs throughout. No relief is granted against the sureties in this application. Advocate's fee Rs. 500.

Appeal allowed.

N.R.R