GOVINDAN MADHAVAN POTTI Vs. SUBRAMONIA IYER

JUDGEMENT

(1.) This appeal arises out of a proceeding in restitution. The facts that gave rise to that proceeding may be briefly stated as follows:-

(2.) The last paragraph in the above judgment has apparently no reference to the properties sold or delivered in O.S. 124 of 1096.

(3.) The facts set out above clearly show that the Illom was deprived of the possession and enjoyment of the concerned properties for the period the respondent was in possession of them and that situation was brought about by the execution Court selling those properties for a debt the Illom was not liable. It is the duty of the Court to see that its acts do not cause any injury to any of the suitors and to place them in the position they would have occupied but for the court's own erroneous decree or order. We cannot therefore find any justification for the lower court to have held that the Illom was not entitled to compensation from the date of the dispossession but only from the date the decree was found to be invalid against it. The Justice of the case demands that the Illom should be compensated for all its loss. The decision reported in Surendra Lal v. Sultan Ahamed AIR 1935 Cal. 206 relied upon by the Court below for the view it took does not say that the liability of a person on whom the Court wrongfully conferred title to, and possession of, immovable property to compensate the real owner for his loss will not commence until the Court itself declares that its previous decree or order was passed erroneously. In fact that case decides just the contrary. There it was held inter alia that a person who obtains possession of immovable property under and by virtue of orders passed by the Court based upon what at the time was a valid decree, but has subsequently been set aside on appeal can in no sense be regarded as a trespasser during such period and that during such period he is liable to the real owner for compensation or damages and not for mesne profits in the strict sense of the term. The Court went on to say that from the moment the previous decree is reversed it becomes his duty to vacate and hand over possession, failing which, he becomes a trespasser and remains liable for mesne profits in such sense so long as he continues in possession. The case also decided that the measure of damages or compensation during the former period cannot be higher than during the latter period. We consider it unfortunate that the learned Judge should have used this decision as an authority for his views that the Illom cannot obtain any compensation for the period of its dispossession ending with the decision of the Court that the decree does not bind it.