K ANANTHARAM SINGH Vs. MARWADI THARA CHAND

JUDGEMENT

(1.) The execution petition, which has given rise to this pre sent appeal, is the sequel of the decision of the High Court reported in Kesar Singh V/s. Secretary of State 1926 49 Mad 652. The properties originally belonged to one Anantharama Singh who died in 1865, and on his death they devolved upon his widow Ramabhoi. She died in the year 1900 and a dispute then arose as to who became entitled to Anantharama Singh's estate. The Government claimed it on the ground of escheat. One Kesar Singh put forward a claim, alleging first that he had been adopted by Ramabhoi, and secondly, that he was a heritable bandhu of Anantharama Singh. In the suit filed by the Government for possession (O.S. No. 11 of 1920) Kesar Singh was impleaded and he was the main contesting defendant. Several others also were added as defendants and of them we are at present concerned with, defendants 24 and 25, by name Gomaji and Tara Chand respectively. They held a usufructuary mortgage created in their favour by Ramabhoi and Kesar Singh, and it was on that account they were impleaded. The trial Court passed a decree in favour of the Government, but that was reversed by the High Court. The petition in the lower Court has been filed by Tarachand and another to whom, for the sake of brevity, we shall refer as mortgagees. They complain that they were deprived of the mortgaged property in pursuance of the trial Court's decree and, claim that they are entitled to restitution under Sec. 144, Civil P C. The petition relates (so far as this appeal is concerned) to two properties, items 12 and 15 in the schedule to the plaint.

(2.) The facts in regard to item 15 are not in dispute and may be briefly stated. That item was in the occupation of one Swami (not a party to the suit), who held it as a tenant under defendants 24 and 25, who were, as already stated, mortgagees with possession. When the Government succeeded in the Sub Court, Swami recognising their title attorned to them. On the reversal of the Sub-Court's judgment, the Tahsildar, acting on behalf of the Government, directed Swami to attorn to Kesar Singh. That was of course wrong, for it was the mortgagees that became entitled to restitution and not Kesar Singh. However, the fact remains that Kesar Singh took advantage of the wrong order and has since been in possession. There was some protest by the mortgagees, but it proved of no avail. The decree of the High Court was passed on 6 January 1926 and the attornment in favour of Kesar Singh was on 2 July, of the same year.

(3.) The mortgagees in the execution petition filed by them claimed from Kesar Singh by way of restitution the property and the estimated mesne profits in respect of it. The lower Court made an order in their favour and the question to be decided is, whether that order can be sustained. We may mention that the lower Court directed the Government to pay the petitioners the profits that accrued due till 30 June 1926. This part of the order affects the Government, but they have filed no appeal and, therefore, no question arises in respect of it.