JUDGMENT
The question raised in this appeal is whether a suit for profits of immoveable property by a person, who was dispossessed in execution of a decree which was reversed in appeal and who was subsequently restored to possession is governed by Art. 109 or Art. 120 of the Limitation Act.
Article 109, which relates to suits for the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant, provides for a period of three years from the date when the profits are received. The article, as it stood in Act XV of 1877, contained a clause to the effect that, when the plaintiff was dispossessed by a decree which was after-wards set aside in appeal, the date was to run from the date when he recovered possession. This clause does not find a place in the Act of 1908 which fixes the starting period in all cases to run from the date when the profits were received. The reason for the omission was probably the change which Sect. 144, cl. (2) of the Civil Procedure Code of 1908 introduced, as a separate suit for recovery of such profits was barred by that section. No reservation was made in the case of causes of action which arose previous to the coming into force of the new Code and in respect of which it has been held that a separate suit would lie. The result seems to be that the article, as it stands, applies to all such cases.
The District Judge following the case of F.H Holloway v. Guneshwar Sing held that article 120 and not 109 applied to such suits.
The decision of the question turns on whether the words “wrongfully received” in Art. 109 should be confined to cases where the possession of the defendant against whom profits are claimed originated in a wrongful act.
In Savarimuthu v. Aithurusu Rowthar it was held by a Full Bench of this Court that a suit for profits received by a person who was in possession under a decree which was reversed in appeal fell under Art. 31 of the Madras Provincial Small Cause Courts Act which exempted from the jurisdiction of the Small Cause Courts suits “for the profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant.” The words above quoted are identical with the words of Art. 109 of the Limitation Act, and, if possession of such a person was wrongful for the purposes of Art. 31 of the Provincial Small Cause Courts Act, it would equally be so for the purposes of the Limitation Act. The referring Judges (Justices Davies and Bhashyam Iyengar) were of opinion that the suit was of the nature described in Art. 109 of the Limitation Act.
We are of opinion that the words “wrongfully received” in Art. 109 of the Limitation Act include receipt of profits under a claim on title that cannot be legally substantiated. An appeal is only a continuation of the original proceedings and the appellate judgment dates back to and stands in the place of the original judgment for all legal purposes. Possession taken by a person pending an appeal is subject to the result of the appeal and must be deemed to have been without legal title if the original decree or order is reversed and is in this sense wrongful as against the person dispossessed. Sect. 144 of the Civil Procedure Code which deals with restitution, empowers the Court to pass orders for the payment of “interest, damages, compensation, and mesne profits” consequent on the variation or reversal of a decree.
The use of the words “damages, compensation and mesne profits,” support the view taken by us, as they indicate that possession was wrongful even though taken in execution of a decree or order.
Both the cases reported in 3 Calcutta Law Journal 182 and 25 Mad., 103 were decided when the Limitation Act XV of 1877 was in force and it is not possible to reconcile the views taken as to what wrongful possession or receipt of property means. We do not see sufficient reasons to dissent from the view taken by the eminent Judges who composed the full Bench in Savarimuthu v. Aithurusu Rowthar.
In the result we set aside the decree of the District Judge and restore that of the District Munsif with costs in this and the Lower Court.
Appeal allowed.