Judgement

Consolidated Appeals from a judgment and decree of the High Court (February 25, 1910) partly affirming and partly reversing four decrees of the Subordinate Judge of Monghyr.

The appeals were in respect of decrees upon applications for mesne profits in respect of property which under decrees made by the Subordinate Judge, the High Court, and the Privy Council in pre-emption proceedings had alternately been in the possession of the preemptors and the original purchaser. The facts are fully stated in the judgment of their Lordships.

The Subordinate Judge held that the above named respondents, representing the original purchaser,

Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri

215

were entitled to mesne profits for the period between July 19, 1900, and July 20, 1904, during which they were out of possession, and that the pre- emptors (the above named appellants) were not entitled to mesne profits for the subsequent period, since they were only entitled to, possession upon paying the full price at which the Privy Council held that they were entitled to purchase.

The High Court (Brett and Sharfuddin JJ.) reversed the decrees in favour of the original purchaser and affirmed those disallowing mesne profits to the pre-emptors. The learned judges thought that s. 144 of the Code of Civil Procedure, 1908, could not be applied, as neither the possession of the pre-emptors from 1900 to 1904 nor that of the original purchaser from 1904 to 1909 was wholly wrongful. They pointed out that the original purchaser had lost the interest for nine years upon the Rs.44,850 which he had paid as the price of the property, but had had possession for five years ; the pre-emptors had lost the interest for nine years upon Rs.37,000, but had had possession for four years. They thought that it would be fair and equitable to treat the profits realized by possession as compensation for the loss of interest in each case, and they accordingly dismissed the claims of both parties. They further observed that substantially the same result would follow under s. 144, as the right to mesne profits as restitution under that section would be subject in each case to a liability for interest upon the outstanding amounts.

1916. Nov. 10. De Gruyther, K.C., and Dube, for the appellants (pre-emptors). The pre-emptors are entitled to mesne profits for the period between 1904 and 1909 during which they were out of possession owing to the erroneous decree of the High Court. They obtained a title upon paying the amount decreed by the Subordinate Judge, and their right of pre-emption was affirmed by the Order in Council. In any case they were not wrongfully in possession between 1900 and 1904 and cannot be made to account for the mesne profits for that period. The pre-emptors have lost the interest upon Rs.37,000 which they paid under the first order ; it is just and equitable that, having established their right of pre-emption, they should have the benefit of the mesne profits. [Gradys Hedaya, p. 550, and the Code of Civil Procedure, 1908, Order xx., r. 14, were referred to.]

Dunne; for the respondents. Under s. 214 the pre-emptors were only entitled to possession from the date when they paid the price finally decreed by the Order in Council Deokinandan v. Sri Ram. (( 1889) I. L. R. 12 Allah. 234.) The right to mesne profits is a question of law depending entirely upon the right to possession. The High Court was wrong in dealing with the matter upon equitable principles. . The decision and reasons of the Subordinate Judge were correct. De Gruyther, K.C. replied.

Dec. 11. The judgment of their Lordships was delivered by

LORD BUCK MASTER L.C. The question in these appeals affects the right to mesne profits of certain lands which by virtue of three different sets of judgments—first, two decrees of the Subordinate Judge on March 31, 1900 ; secondly, two decrees of the High Court at Calcutta on January 20, 1904 ; and thirdly, an Order in