BENI MADHO SINGH Vs. PRAN SINGH

JUDGEMENT

(1.) These appeals are directed against two orders made in execution proceed-mgs. The appellant, as plaintiff in a mortgage suit, obtained a decree on the 29th June 1907 which was confirmed by this Court on appeal on the 2nd December 1908. Execution was taken out in due course, the mortgaged properties were sold and were purchased by the decree-holder in the name of another person on the 25th November 1910. The auction-purchaser then obtained delivery of possession through the Court. Application was, however, made on the 21st March 1910 for reversal of the sale. That application was dismissed by the primary Court on the 18th August 1910, but upon appeal to this Court, the sale was set aside on the 28th August 1911. On the return of the records to the Court below, the judgment-debtors applied that they might be restored to possession of their properties. The decree-holder objected to the grant of this application on the ground that it could not be entertained under Section 144 of the Code of 1908. At the same time, the decree-holder applied for the appointment of a Receiver to take charge of the properties pending further proceedings inexecution. The Subordinate Judge has granted the application of the judgment-debtors and directed the decree-holder, auction- purchaser, to restore the properties to their custody. The Subordinate Judge has also dismissed the application of the decree-holder for the appointment of a Receiver. The appeals now before us are directed against these two orders.

(2.) In support of the first of these appeals, it has been argued on behalf of the decree-holder- appellant that inasmuch as Section 144 has no application to the circumstances of this case, the application for restitution should be dismissed. Section 144 provides that, where and in so far as a decree is varied or reversed, the Court shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. It has been contended on behalf of the appellant that what has been reversed in the present case is not the original decree but the sale which was held in execution of that decree, and that, consequently, Section 144 has no application. It has further been argued that Section 141, which lays down that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction, is of no assistance in view of the decision of their Lordships of the Judicial Committee in Thahur Prasad v. Fakirullah. 22 I.A. 44 : 17 A. 106 where it was ruled that Section 647 of the Code of 1882, which was re-placed by Section 141 of the Code of 1908 was not applicable to proceedings in execution of decrees. Assuming these positions (o be sound, it is, in our opinion, not necessary to support the order of the Court below by a reference either to Section 141 or Section 144 of the Code. It is well settled that the power of a Court to grant restitution is not confined to the cases covered by the provisions of Section 144. The power extends also to cases which do not come strictly within the section, because the Court has an inherent right, irrespective of the section, to order restitution. In support of this proposition reference may be made to the decision of Sir Comer Petheram, C.J., in Mookoond Lal Pal Chowdhry v. Mahomed Sami Meah 14 C. 484 which was accepted as good law in Raja Singh v. Kooldip Singh 21 C. 989. The cases of Dinesh Prasad v. Sankar Chaudhury 2 C.L.J. 537; Radhey Singh v. Mangni Ram 6 C.W.N. 710; Collector of Meerut v. Kalka Pershad 28 A. 665 : A.W.N. (1906) 171 : 3 A.L.J. 556 and Shiam Sunder Lal v. Kaisar Zamani Begam 29 A. 143 : 4 A.L.J. 19 : A.W.N. (1906) 315 furnish illustrations of cases in which orders have been made for restitution, though the cases do not fall strictly within the scope of Section 583 of the Code of 1882. The principle upon which restitution is directed in such cases was explained by the Judicial Committee in Rodger v. Comptior d Escompte de Paris L.R. 3 P.C. 465 : 40 L.J. P.C. 1 : 24 L.T. 111 : 19 W.R. 449 : 7 Moore P.C. (N.S.) 314. That principle is that the Court will not permit an injustice to be done by reason of an erroneous order made by it; when that erroneous order has been reversed, the Court will restore the parties to the position which they would otherwise have occupied. The same principle underlies the decision of this Court in Prag Narain v. Kamakhia. Singh 10 C.L.J. 257 : 11 Bom. L.R. 1200 : 6 M.L.T. 303 : 3 Ind. Cas. 298 : 31 A. 551 : 14 C.W.N. 55 : 19 M.L.J. 599 : 13 O.C. 180. It has not been disputed by the learned Vakil for the appellant that the Court has inherent power to make an order of this description; in fact, the position cannot be disputed in view of Section 151 of the Code of 1908 which gives Legislative sanction to the principle embodied in the decisions of this Court in Panchanan Singha v. Dwarka Nath Roy 3 C.L.J. 29; Hukum Chand v. Kamalanand 3 C.L.J. 67 : 33 C. 927 and Udit Chobey v. Rashika Prasad 6 C.L.J. 662 : 3 M.L.T. 41. It follows, consequently, that the judgment-debtors are not only entitled to be restored to possession of the properties sold in execution but also to a refund of the profits which have been or might have been collected by- the decree-holder auction-purchaser during the period he was in possession. The Court below, before execution is taken out again, will ascertain the amount of such mesne profits which will be set off against the decretal amount. The result, therefore, is that, in so far as the first appeal is concerned, it must be dismissed.

(3.) In so far as the second appeal is concerned, it is directed against the order of the Subordinate Judge refusing to appoint a Receiver of the mortgaged properties pending further execution of the mortgage-decree. It has been pointed out to us by the learned Vakil for the appellant that the earliest of the mortgage securities was granted so far back as 1900. The decree was made in 1907 and no payment has ever been made in respect of either the principal sum or of the interest which has accrued due. There is also a substantial dispute between the parties as to the value of the properties covered by the mortgage, and the decree-holder maintains that they do not afford sufficient security for the mortgage-debt with the ever-increasing interest. Under these circumstances, we are of opinion that the decree- holder is entitled to ask for the appointment of a Receiver. The view we take is supported by the decisions of this Court in the cases of Weatherall v. Eastern Mortgage Agency 13 C.L.J. 495 : 9 Ind. Cas. 985 and Khubsurat Koer v. Saroda Charan 14 C.L.J. 526 : 16 C.W.N. 126 : 12 Ind. Cas. 165. The result, therefore, is that the second appeal must be allowed, the order of the Subordinate Judge set aside, and the case remanded to him in order that he vmj appoint a suitable person as Receiver.