Sir George Rankin.:-

The appellant is the proprietor of an estate called the Beswan estate at Aligarh. In 1923 respondent 3 Mahabir Singh, herein called "the plaintiff" brought a suit in forma pauperis claiming the estate and seeking to eject the appellant's elder brother who was then in possession. The elder brother died while the suit was pending and the appellant who was a minor at the time was substituted in his stead as the defendant and the Court of Wards acted on his behalf. The trial Court gave decree for the plaintiff on 2nd June 1925, but on 12th February 1929, the High Court at Allahabad reversed this decision and dismissed the suit. Their decree was confirmed upon appeal to His Majesty in Council. On 16th February 1926, while the case was pending before it the High Court ordered that the plaintiff should be put in possession of the estate in execution of the trial Court's decree on his depositing in the trial Court security in the sum of Rs. 42,000. On 1st April 1926, one Jiwan Singh, father of respondent 1, Har Prasad Singh, executed a security bond which is the foundation of the present proceedings. This bond was not expressed to be in favour of any specified individual nor was any person other than Jiwan Singh mentioned as a party thereto, but by it Jiwan Singh hypothecated a number of items of zemindari property and the terms of the security were as follows :

If the decree passed by the Court of first instance is amended or set aside by the appellate Court, the plaintiff-respondent shall re-convey the property, whereof he shall obtain possession under the security bond in the same condition as it is at present and shall pay, according to the orders of the appellate Court, such amount of mesne profits in respect of the property in dispute as may be found due by the plaintiff decree-holder when the possession of the property is delivered. If the plaintiff fails to comply with the orders of the appellate Court, the amount may be recovered by auction sale of the property hypothecated under this deed which is specified below. If the sale proceeds be inadequate, my person and other property shall remain liable to the extent of the amount of security and I, the executant, in person and my heirs and representatives shall remain liable for payment of the same.

On these clauses it may be convenient to observe that the only personal liability assumed by Jiwan Singh arises in the event of the charge failing to yield a sum of Rs. 42,000 and is in respect of any such deficiency. Also that while the mesne profits for which the security is given must be payable in respect of the appellate Court's decree, their Lordships do not construe the bond as meaning that they must be assessed by the appellate Court itself - a procedure which would be contrary to the usual practice and to the course laid down by the Code. When a decree is varied or reversed in circumstances giving rise to a right by way of restitution, the right arises automatically and is claimable under S. 144 of the Code before the trial Court. In accordance with the usual practice the appellate Court's decree made no mention of mesne profits by way of restitution though it is the origin and source of the right.

The plaintiff was pat in possession of the Beswan estate in July 1936, and after the trial Court's decision had been reversed possession was in 1939 returned to the Collector and to the Court of Wards for the appellant. Meantime Jiwan Singh had died in 1928. In April 1930, the Collector settled with respondent 2 Mt. Maharani Kuer, the plaintiff's aunt, as the plaintiff's guardian, the sum due for mesne profits while the plaintiff had been in possession. It was fixed at Rs. 24,722 and paid without any order having to be obtained from the Court. A receipt therefor dated 23rd April 1930, was granted by the Collector and was registered in due course. In 1933, the Court of Wards released the estate to the appellant who had attained majority and obtained from him a safin