On 11th August 1936, there was a preliminary decree to enforce the mortgage deed, dated 15th March, 1933, executed by the defendant-appellant in favour of the plaintiff-respondent in second appeal. There was a final decree on 17th March, 1937, for the sale of the hypotheca. The defendant subsequently applied to have the decree debt scaled down under the provisions of the Madras Agriculturists Relief Act (IV of 1938). That application was allowed by the trial Court on 27th December, 1938 and the decree debt was scaled down to Rs. 427-3-0. Against that order the decree-holder filed A.S. No. 190 of 1939 to the District Judge who held that the decree debt ought to be scaled down to Rs. 751-9-8. This was on 22nd March, 1938. Against the decree of the appellate Court in A.S. No. 190 of 1939 the defendant filed a second appeal. On 13th July, 1942, the High Court set aside the decree of the lower appellate Court in A.S. No. 190 of 1939 on the ground that the appellate Court had no jurisdiction to entertain the appeal against the order of the District Munsif scaling down the debt to Rs. 427-3-0. Subsequent to that, the plaintiff appealed against the amended decree: A.S. No. 181 of 1942. Eventually, after the remand by the High Court, that appeal, A.S. No. 181 of 1942, was allowed, and the Court held that the amount due to the decree-holder under the decree was Rs. 751-9-8, the very sum that the appellate Court held in. the infructuous A.S. No. 190 of 1939 to be due to the decree-holder.

Pending the disposal of A.S. No. 181 of 1942, in execution of the decree as it was amended by the decree in A.S. No. 190 of 1939, the decree-holder brought the property to sale on 12th August, 1940 and purchased it himself. The sale was -confirmed on 19th September, 1940 and possession of the property was delivered to the plaintiff on 20th October, 1940.

It will be remembered that the decree in A.S. No. 190 of 1939 was set aside by the High Court in second appeal on 13th July, 1942. The defendant followed it up with an application for restitution, out of which this second appeal has arisen. That application was filed on 4th September, 1942. The learned District Munsif dismissed that application and with that decision the learned Subordinate Judge, to whom the matter was taken on appeal, concurred. Hence this second appeal.

The application for restitution was dismissed by the trial Court on nth August, 1945, that is after the final disposal of A.S. No. 181 of 1942, which held that the correct amount due to the decree-holder under the decree was Rs. 751-9-8, the very sum that was declared to be due to the decree-holder even in the decree in. A.S. No. 190 of 1939.

In paragraph 3 of his judgment, the learned District Munsif observed:

“There is one more difficulty which has cropped up in this case for the reason that admittedly after the respondent took possession of these properties the superior jenmi of the properties brought a suit O.S. No. 57 of 1941 of this Court for sale of the properties for arrears of michavaram due to him and in execution of the decree in the said suit, the properties have been sold and purchased by a third party who has dispossessed the respondent.”

This aspect of the case does not appear to have been considered by the learnedSubordinate Judge. It is clear that in any event the defendant cannot get restitution as such, in the sense that he can recover possession of the properties from the plaintiff-respondent. On the date the application came up for orders the plaintiffrespondent himself had lost possession, and it was a person with title superior both to the plaintiff and defendant in this suit that obtained the decree under which the respondent lost possession.

In the application which the defendant filed, in addition to the re-delivery of properties which he sought he asked for mesne profits. The main basis for liability for mesne profits should be that possession was unlawful. Here it was under a sale in execution of the decre