GANPAT GATLU Vs. NAVNITLAL RANCHHODDAS

JUDGEMENT

(1.) THIS is an appeal from an order of the District Judge of West Khandesh setting aside the trial Court's order dismissing as time-barred the respondents' application under Section 144 of the Civil Procedure Code for restitution. He has remanded the case for decision thereof on the merits. The question raised in this appeal is one of limitation and it arises in this way. The plaintiff purchased in 1918 about one hundred mango trees in execution of a mortgage decree of 1910. As he found difficulty in recovering possession owing to obstruction by certain persons who claimed title to the trees, in 1921 he instituted an action for possession against those persons. Among them was one Jamnabai who claimed certain number of mango trees from a large cluster as purchaser from the mortgagor's daughter who had sold them as being outside the specific trees mortgaged. In 1924 a decree was passed in the plaintiff's favour. In execution he succeeded in obtaining possession of eighty mango trees on April 9, 1925. In appeal taken by some of the defendants it was contended that as the cluster of mango trees consisted of a very large number of trees exceeding hundred, it was incumbent on the plaintiff to establish the specific trees mortgaged and sold, and that there was no evidence of their identity. That argument appealed to the first appeal Court which therefore reversed the trial Court's decree and remanded the suit for ascertaining "which of the trees were actually sold to the respondents. "

(2.) UNQUESTIONABLY upon that reversal and remand the restitution of the trees taken possession of by virtue of the decree was properly consequential. But that was not done because there was no application for restitution under Section 144 of the Code then made. The suit thereafter upon remand proceeded to trial and the plaintiff's claim was upheld, except in respect to some trees which were claimed by defendant No.3, Jamnabai, and since purchased on June 26, 1927, by the present respondents. The decree upon remand was passed on November 23, 1931. On April 12, 1933, Jamnabai's successors, the present respondents, applied merely for an order for mesne profits of those trees excluded from the original decree for the period of the alleged wrongful possession of the plaintiff commencing from the date of his possession in execution of the decree, namely, April 9, 1925, to the date of the application. That claim was resisted on the ground of limitation and the plea in that respect was upheld by the trial Court. But it did not find favour with the learned District Judge. He held, following Sonba v. Parashram [1923] A. I. R. Nag. 101, that the awarding of mesne profits was not a proper consequence of the order of remand and reversal and that time commenced to run from the decree passed after remand. He, therefore, remanded the case for ascertaining the quantum of the profits recovered. Against that order the plaintiff's heirs have appealed.