DOYAL SARKAR Vs. TARI DESHI

JUDGEMENT

(1.) The appellant Doyal Sarkar sued the principal respondents in 1922 for possession of certain lands and in the trial Court obtained a decree on 30 November 1922 for possession of the lands claimed and for the sum of Rupees 49-8-6 for costs. Respondent 1 appealed from that decree and on 14 January 1924, the appellate Court varied it by disallowing the plaintiff's claim to five bighas out of the suit lands and by reducing the costs recoverable by the plaintiff in re3pect of the proceeding in the trial Court to Rs. 36-7-9. In the meantime, in 1923, the plaintiff levied execution upon the trial Court's decree and in execution of the decree for costs put up to sale and himself purchased on 5 June 1923, two jotes of the defendants. The jote first sold fetched Rs. 35 and the second joto Rs. 15. In 1925 the defendants applied to the trial Court under Section 144, Civil P. C, asking for restitution not only in respect of the five bighas of land as to which they succeeded in the appellate Court, but also for restitution of the two jotes sold in execution of the decree for costs. The only question before us has reference to these two jotes.

(2.) The Munsif refused to direct possession of these two jotes to he given back to the defendants holding that for the amount of coats ultimately awarded in respect of the trial it would have been necessary to sell both jotes and that the order to which the defendants were entitled upon this item of their claim was an order for the difference between the amount of money obtained by the plaintiff by the process of execution and the amount of money to which the plaintiff was ultimately found to be entitled together with interest upon this difference. The Subordinate Judge took the other view. He made an order directing that the plaintiff should give up possession of the two jotes to the defendants with mesne profits, subject to the condition that the defendants should deposit the sum ultimately awarded in respect of the costs in the trial Court with interest at 6 per cent. From what date this interest is to run is not clear to mo.

(3.) It does not appear that at any time after the date of the Halo, 5 June 1923, the sale proceedings wore challenged for irregularity. The learned Subordinate Judge however appears to think that having regard to the area of the two jotes they were sold for a very small price. This however does not seem in the circumstances of the present case, to have any real bearing on the question before us. The execution sale must be taken to have been a proper sale; and indeed, there has been no such inquiry into the matter as to justify any finding that for the defendants interest in those rent bearing lands the price obtained is any evidence that the sale was not properly conducted. The question before us must be settled by careful attention to the provisions of Section 144 of the (lode of 1908, which is as follows: 144 (1) Where and in so far as a decree is varied or reversed, the Court of first instance 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 boon varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment oil interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) . . .