The reopening of a decree as against a party entitles the party to restitution of all their interests in the property, and the calculation of mesne profits should be based on the actual deposit made by the party.

1. These two appeals are by the assignee-decree-holder and are directed against the same order as to restitution in execution.

2. The decree in the case was passed on 26.3.1112 on the contest of the 3rd defendant alone, as against the defendants 1 to 3 and charged on the property scheduled to the decree. On foot of this decree, the court sale of the property took place on 13.7.1113 and was confirmed, after dismissal of a petition under 0.21 R.90 C.P.C. filed by the defendants 2 and 3, on 13.1.1116 and the property was in due course delivered on 31.1.1118. Meanwhile on 7.4.1113 the 1st defendant applied to set aside the exparte decree in the case as against him and got it set aside. The scope of the order under 0.9 R.13, as to whether it reopened the whole case even, was finally decided in C.R.P. 928 of 1121 to the effect that the reopening was only as against the 1st defendant. The suit after retrial, was decreed once again not only against the 1st defendant but against the other defendants as well. The plaintiff took up the matter to the District Court in appeal and got the matter clarified to say that the fresh decree was intended to be passed only as against the 1st defendant and his interest in the property. The High Court confirmed this view in second appeal by the 1st defendant by its decree on 19.10.1953.

3. As soon as the Munsiff passed his decree after retrial, the 1st defendant deposited in court the entire decree amount on 25.8.1123 and applied for restitution of the property with mesne profits at the rate of Rs. 25 per month. This was resisted by the assignee-decree-holder on various grounds. The courts below have now concurrently allowed the restitution applications of the 1st defendant and hence these two appeals.

4. Learned Counsel for the appellant says that the decree was reopened only as against the 1st defendant personally and that he has now no interest in the property to agitate at all. So the redelivery should be limited to the 1st defendant's 1/z interest in the property with mesne profits from date of delivery 31.1.1118 at the rate of Rs. 12 for the entire property.

5. The first contention is obviously wrong. When the decree was reopened as against the 1st defendant personally, it meant that all his interests in the property were disburdened of the liability under the decree. The object of the proceedings under 0.9 R.13 was to give fresh opportunity to a debtor to reagitate the plaint claim. To allow him to question part only of the exparte decree as against him, will amount to withholding with one hand what is granted by the other. Learned Counsel referred to an observation in the final High Court judgment dated 19.10.1953 to say that the decree had been kept in tact as against the defendants 2 and 3 and the property. But what was meant was only their interest in the property. It follows therefore that as soon as the 1st decree was set aside, and the court sale of the 1st defendant's interest in the property fell along with it, the 1st defendant was entitled to restitution. And this right is available even though fresh decree is passed against him on much the same lines as originally. See Shivbai Kom Babya Swami v. Yasoo I.L.R. 43 Bom. 235.

6. But the courts below were wrong in allowing a re-delivery of the entire property to the 1st defendant, and this with all mesne profits asked by him. The order of the executing court did not give any reason for its directions. But the court below said that a peculiar position had developed by which what the defendants 2 and 3 could not claim on their application could be achieved on the 1st defendant's application because the decree was freshly passed as against him and he has deposited the entire decree amount. It thought that the court sale as against the defendants 2 and 3 stood wiped out and all that the decree-holder could claim was payment of the decree amount. But this ignores the finality of the court sale as against defendants 2 and 3. The only con