Tudball, J.:— First Appeals Nos. 86 and 87 are really not true first appeals but are first appeals from orders passed in the execution department. They ought, as a matter of fact under the standing rules of this Court, to have been put up long ago for decision. The matter in each case is exactly the same, Mt. Ram Davi instituted two suits for pre-emption as against Gokul Prasad. He did not defend the suits but expressed his willingness to give up the property on payment of the money due and asked for his costs.
2. The first Court gave the plaintiff a decree in each case and also awarded to her her costs as against the defendant. In each case Gokul Prasad appealed to the High Court only as to costs, and while his appeals were pending the plaintiff pub her decrees into execution and recovered from him the amounts awarded to her as costs by the first court. On appeal the High Court set aside the first court's decrees as to the payment of costs and made the plaintiff pay the defendant's costs in each case. In each case Gokul Prasad has applied to the court below for restitution. He sought to recover from the plaintiff the two amounts which were taken from him in the two cases as being the costs awaited to her by the court of first instance and he asked the court below for interest on these two sums with effect from the date on which they were paid, up to the date of restitution. The lower court has merely stated the in its opinion as the amount was really for the payment of costs, no interest should be allowed. The order is obviously unjust and incorrect. Section 144 is vary plain in its language. The appellant Gokul Prasad is entitled to be replaced in exactly the same position in which he would have been if the money had never been recovered from him. The plaintiff has had the use of this money all this time; the defendant has been deprived of the use of it. He therefore is clearly entitled in justice and equity to interest on the money. The result therefore is the we allow each of these appeals; we modify the order of the court below; the appellant will be entitled to recover interest ab six parent per annum, simple, on the sum due to him with effect from the 15th of June, 1914, up to the date on which he recovered the principal sum due in each case. The appellant will have his costs in this Court.
3. Appeal decreed.