KHEDURAM Vs. SUPETKAUR

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a decision of Naik J., by which the learned single Judge upheld an order of the Additional District Judge, Bilaspur, dismissing an application made by the appellants in circumstances to be presently stated, for recovery of mesne profits.

(2.) IN execution of a money decree held by them against the judgment- debtors-respondents, the appellants purchased in a Court-auction some lands belonging to the judgment-debtors, and on 24th April 1956 they applied for confirmation of the sale. Before the confirmation of the sale, the judgment- debtors deposited the decretal amount praying that the sale be not confirmed. The executing Court set aside the sale. The order of the executing Court setting aside the sale was, however, set aside by a learned single Judge of this Court in Misc. (First) Appeal No. 17 of 1958. A Letters Patent appeal was then preferred against the decision of the learned single Judge which was ultimately dismissed and thereafter the sale was confirmed and delivery of possession of the lands to the decree-holder-appellants was given.

(3.) IN our judgment, the real question that required to be considered in connection with the application presented by the appellants for recovery of mesne profits was not of restitution; it was whether the stay order made on 15th January 1960 and confirmed on 15th March 1960 in the Letters Patent appeal granted to the appellants a right to recover mesne profits from the respondents and whether that order of the High Court could be executed on the application made by the appellants. It is quite true that the principle of "restitution" applies when a decree or order is varied or reversed and the object of restitution is to "place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed". [See Jai Berham v. Kedar Nath, AIR 1922 PC 269 at p. 271 and S. N. Banerji v. K. L. and 8. Co., AIR 1941 PC 128 at p. 129]. Here, there was no decree at all in favour of the appellants for delivery of possession of any lands and for mesne profits thereof. Consequently, the question of "restitution" as a result of variation or reversal of such a decree did not and could not arise. The application presented for recovery of mesne profits by the appellants was no doubt styled as one for restitution under sections 144 and 151 of the Code of Civil Procedure; but this "naming" of the petition could not clearly prevent the Court from making an order in favour of the appellants for recovery of mesne profits if the stay order passed in the Letters Patent appeal granted them mesne profits and if that order could be executed by an application to the executing Court. The question, therefore, that arises for determination is as regards the construction and effect of the stay order.