The facts of the case are sufficiently set forth in the judge of the High Court (1), which was delivered by
Ainslie, J.:— Mussamut Sahodra Kooer, the respondent in the present ??? brought a suit against the appellant for possession of ??? property. In the first Court her suit was dismissed, ??? appeal she obtained an order in her favour, and having ??? decree into execution, she obtained possession of the ??? suit. The defendants in that suit appealed to the High ??? and, the High Court having remanded the case to the Court the result was that the Court below affirmed the judgment first Court dismissing the suit. On this the defendant original suit, who is now the appellant before us, applied Court to be restored to possession of the property of possession had been taken by the other side in execution of ??? and asked to have mesne profits given in respect of the during which she was out of possession, and that such profits should be calculated and awarded to her in execution the decree of this Court by which the order for possession set aside.
The Moonsiff was of opinion that, as the petitioner ??? show any distinct decree by which mesne profits were ??? was not open to him to make any inquiry, excepting in the ??? of a regular suit for mesne profits. The District Judge affirmed that decision relying on a case reported in 24 ??? 193—Sadasiva Pillai v. Ramalinga Pillai, decided by the Council.
It appears to us that the view taken by the Subordinate ??? is not correct. A number of decisions of this Court have cited, which lay down that, where property has passed ??? of a decree, and that decree has been set aside, the ??? which gave possession of the property is bound to make ??? restitution to the person injured by its cancelled decree. ??? first of these decisions is to be found in 2 W.R, 275—???Chunder Sein v. Bidyadharee Dossee. That, no doubt, is ??? case exactly in point; the question there was with reference specific sum of money taken out from the Collectorate treasury execution of a decree, but we think that the principle on which ??? Court then based its judgment is the same as that on which ??? judgments in cases to be quoted further on are based. There ??? a case in 10 W.R, 131—Chowdhry Shib Narain v. Chowdhry Kishore Narain, which is distinctly in point; and in that case Mr. Justice Bayley, in delivering judgment, cited the opinion of the late learned Chief Justice, Sir Barnes Peacock, in the case in 9 W.R, 402—Hurro Chunder Roy Chowdhry v. Shoorodhonee ??? Debia. Sir Barnes Peacock said that “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 has been deprived by reason of its having been enforced. Further on he says: “In England, if a judgment is reversed for error, the person against whom the judgment was given is entitled to a writ of restitution. It is not a mere matter of discretion with the Court which reverses a decree whether the party against whom it was given is or is not to be restored to what he has been deprived of under it. There can be no doubt that in point of justice the plaintiff was entitled to have the rents which the defendant had collected from her land whilst he was in possession of it under the erroneous decree refunded. This case is not like the case No. 249 of 1865, reported in 6 Weekly Reporter, Full Bench cases, in which it was held that it was discretionary with the Court which passed the decree to award interest or not.” The learned Chief Justice goes on then to cite another case from 6 W.R, 3 Misc.—Syud Abdool Jaleel v. Kallee Koomar Dutt. Then there are two cases—Bibee Hamida v. Bibee Bhudhun, 20 W.R, 239, and Bama Soonduree Dabee v. Tarinee Kant ???, 20 W.R, 415, in which the same view is adopted; and again in 21 W.R, 195, there is a case—Gooroo Dass Roy v. Stephens—which came before Mr. Justice L.S Jackson and myself, in which we held that with reference to the judgment of the Privy Council in 14 W.R, 23 P.C—Rajah Leelanund Singh v. Maharajah Lakhmessar Singh, the Court was bound to out the order for the reversal of a previous order to the extent, so as to relieve the person injured by the first order all its consequences. The same view was followed in the in 22 W.R, 435—Duljeet Gorain v. Rewal Gorain, and ??? W.R, 441—Ununt Ram Hazrah v. Kuralee Pershad Mitter.
The cases cited on the other side do not appear to ??? directly in point. They are Deegamburee Dabee v. ??? Banerjee, 1 W.R, 1 Misc.; Huro Mohinee Chowdrain v. Mohinee Chowdrain, 10 W.R, 62; Janokee Nath Mookerjee v. Raj Kristo Singh, 15 W.R, 292; Syud Shah Ameer ??? v. Syud Shah Zameer Ahmud, 18 W.R, 122; Bhoobune Chowdhrain v. Manson, 22 W.R, 160; and Kalee Nath ??? v. Rajah Meah, 22 W.R, 406. On reference to these cases, it was seen that the whole of them refer to the extension of the ??? or decree, and not to the effect of an order for the reversal of a ???.
The case cited by the Judge, and a later case in L.R ??? App., 137—Forester v. Secretary of State, only go so far ??? establish what had been the practice of all the Courts in ??? namely, that nothing can be added to a decree in counsel execution; but in this case it is not a question of adding to decree at all. What the Court is asked to do is simply to set aside that which has resulted from its own action taken under erroneous decree.
With reference to the case in 9 W.R, 402—Hurro Chunder Chowdhry v. Shoorodhonee Debia, it ought to be mentioned Mr. Justice Loch apparently does not altogether assent ??? views expressed by the Chief Justice. An examination of case, however, will show that in fact it belongs to the same ??? of cases as the other cases cited by the respondent, namely, it may be treated as a case in which there was an ??? extend a definite order. This will be seen by referring to ??? 405 of the same volume. It is there said that the Sudder ??? on the 13th of May 1858, affirmed the decision so far as it ??? to the deed, and reversed it as to the award of possession ??? then plaintiff, and directed that the property should remain ??? the present plaintiff who, as widow in the absence of an ??? was entitled to the estate during her life as heir of her ??? husband. So that there was a definite declaration by the Court; and it might be argued that it made that declaration advisedly, and that it was its intention not to go further than that. In the present case from the form of the proceedings stated above, it is evident that there could have been no such express or implied intention of the Court which set aside the decree under which possession had been taken. It was, therefore, open to the Moonsiff on the present application to do all that was necessary to make the restitution complete.
The Judge has said in his judgment: “I note further that the de facto possession of Mussamut Sahodro, between Falgoon and Bhadro 1281, is not established.” If this were a finding of fact come to on the evidence, no doubt, sitting here in special appeal, we would be unable to deal with it; but it appears to us that it cannot be treated as such; for, although there is evidence on one side which has been uncontradicted by evidence on the other, it does not appear that any particular time was fixed for the parties to appear in Court with all the evidence that they might have to give on questions of fact. The only order which has been brought to our notice is one by which the 23rd of January 1877 was fixed for bearing. That order is to the effect that it is fixed for the hearing of argument, and for making such order as may then be necessary; and it is evident that this was the course adopted by the Moonsiff. He dealt with the case as one which could probably be disposed of simply on a question of law; and he in fact did dispose of it on a question of law without going into the facts at all. Had his decision been the other way, we think it would follow from the order by which the 23rd of January was fixed for hearing, that he would then have made some order for proceeding upon evidence on the merits of the case. In the absence of such order the appellant cannot be concluded by the evidence produced by the other side and the absence of evidence on her part.
The case must, therefore, go back to the Court below to ascertain whether, as a matter of fact, Mussamut Sahodra ever was in possession of the property as the result of the execution of her decree; and, if so, how much the appellant is entitled to receive from her as mesne profits in respect of the time during which she was in possession. Costs will follow the result.