SRI SRI SRI NANDAKISHORE ANANGA BHIMA DEV KESARI GAJAPATHI, ZAMINDAR OF SANNOKHEMEDI REPRESENTED BY POWER-OF-ATTORNEY HOLDER SRIMAN VISWANADHA DAS MAHASAYO Vs. SUSI IAMALA PATTA MAHADEVI

JUDGEMENT

(1.) This appeal raises a question of restitution and has been referred to me on a difference of opinion between Burn and Stodart, JJ., on two points.

(2.) (1) The question of the, applicability of Section 144, Civil Procedure Code, and (2) the question of the liability of the defendant's legal representative (first respondent herein) to make a restitution, if Section 144, Civil Procedure Code, applies.

(3.) The facts of the case have been fully set forth in the judgments of my learned brothers and it is unnecessary to repeat them at length. The essential points are that the plaintiff sued for possession of his estate from the husband of the present first respondent and in the Subordinate Judge's Court, he succeeded, the decree being dated 20 December, 1922. The defendant appealed to the High Court and in that appeal, a Receiver was appointed who took charge of the estate in April, 1923, the plaintiff not having got possession meanwhile. The defendant died in 1925 and his widow (the present first respondent) carried on the appeal. On 30 March, 1928, the High Court reversed the trial Court's decree. The plaintiff preferred an appeal to the Privy Council and asked that the receiver should continue in possession of the estate. But this prayer was refused and the widow obtained possession from the receiver. On 1 November, 1932, the Privy Council set aside the decree of the High Court and restored the decree of the Subordinate Judge. Immediately after this decree was passed, the first respondent was herself appointed receiver pending receipt of the formal order in Council and the appellant got possession in March, 1933. The appellant claims restitution in the shape of profits of the estate for the period from April, 1929, when the first respondent took possession from the receiver, to December, 1932, when she was herself appointed receiver. The profits of the estate, after allowing ordinary charges, amount to approximately Rs. 1,30,000 for this period.