Judgement

Appeal from an order of the above Court (May 22, 1906) affirming an order of the Subordinate Judge of Barabanhi (February 12, 1906).

An application was made by the respondents to the Court of the Subordinate Judge under the circumstances stated in their Lordships judgment, under s. 583 of the Code of Civil Procedure, claiming, inter alia, restitution of the profits realized by the appellant mortgagee from the village in suit during his possession under an invalid sale with interest. The judge held that s. 583 did not apply, while the Appellate Court held that it did and remanded the case to determine the amount of the profits. After the amount was ascertained the mortgagee again appealed, and the Judicial Commissioner ruled as follows "The respondents have paid to the appellant the whole amount due under his decree, so that the appellant cannot possibly claim to retain any part of the profits on account of that decree. It was argued that the appellant should be allowed to retain the profits because the decree carried no interest and the appellant lost the use of the purchase-money for a certain time. The circumstance that the decree carried no interest is, in my opinion, altogether irrelevant, and I cannot

Law Rep. 36 Ind. App. 197 ( 1908- 1909)

Munshi Prag Narain V. Thakur Kamakhia Singh 93

see that the appellant lost the use of the purchase-money for any time owing to anything that took place in execution. As a matter of fact the purchase-money was set off against the amount due under the decree. The decision of their Lordships of the Privy Council in Rodger v. Comptoir dEscompte de Paris (( 1871) L. R. 3 P. C. 465, at p. 475.) shews that the respondents are entitled to interest on the profits."

De Gruyther, K.C., and Dube, for the appellant, contended that the respondents remedy was by separate suit and not by an application under s. 583, which related to restitution under a decree and applied only to decrees as defined in s. 2. The final order in this case, which set aside the sale, was an order made under s. 588 (16.), and having regard to s. 2 was not a decree, so that s. 583 did not apply, and did not authorize the procedure adopted by the respondents. Reference was also made to s. 285. It was also contended that the appellant was entitled to interest on the purchase-money during the time he lost the use of it, and that the respondents were not entitled to interest on their mesne profits see Rodger v. Comptoir dEscompte de Paris. (( 1871) L. R. 3 P. C. 465, at p. 475.)

Ross, for the respondents, contended that s. 588 applied. The appellant was both auction purchaser and decree-holder, and the final order setting aside the sale was an order under s. 244 and therefore a decree, and relief was obtainable in the execution proceedings without any necessity for a separate suit. Reference was made to Prosonno Coomar Sanyal v. Kasi Das Sanyal. (( 1892) L. R. 19 Ind. Ap. 166, 169.) The respondents were entitled to interest on their mesne profits. The appellant had never paid anything in cash, but only by set-off against the amount of his decree, which had subsequently been satisfied with interest. Consequently he had no claim for further interest on money of which he had never lost the use.

De Gruyther, K.C., in reply.

The judgment of their Lordships was delivered by

LORD MACNAGHTEN. This is a very idle appeal.

In November, 1897, the appellant obtained a decree against the predecessor in title of the respondents declaring that on May 1, 1898, Rs. 85,866.15.6 would be due to him on the footing of a certain mortgage bond, and ordering a sale in default of payment.

In February, 1901, the property was put up to sale by auction in execution of the decree. It was knocked down for Rs. 82,000 to the appellant, the decree-holder, who had leave to bid.

On December 15, 1901, the appellant as purchaser obtained possession of the property. In September, 1903, the sale was set aside for irregularity. In March, 1904, the respondents pa