The main legal point established in the judgment is the interpretation of Section 144, Civil Procedure Code and the entitlement of the plaintiff to restitution of profits wrongfully received by the defendant's legal representative.

Wadsworth, J.

1. This appeal raises a question of restitution and has been referred to me on a difference of opinion between Burn and Stodart, JJ., on two points.

2. (1) The question of the, applicability of Section 144, Civil Procedure Code, and (2) the question of the liability of the defendants legal representative (first respondent herein) to make a restitution, if Section 144, Civil Procedure Code, applies.

3. The facts of the case have been fully set forth in the judgments of my learned brothers and it is unnecessary to repeat them at length. The essential points are that the plaintiff sued for possession of his estate from the husband of the present first respondent and in the Subordinate Judges Court, he succeeded, the decree being dated 20th December, 1922. The defendant appealed to the High Court and in that appeal, a Receiver was appointed who took charge of the estate in April, 1923, the plaintiff not having got possession meanwhile. The defendant died in 1925 and his widow (the present first respondent) carried on the appeal. On 30th March, 1928, the High Court reversed the trial Courts decree. The plaintiff preferred an appeal to the Privy Council and asked that the receiver should continue in possession of the estate. But this prayer was refused and the widow obtained possession from the receiver. On 1st November, 1932, the Privy Council set aside the decree of the High Court and restored the decree of the Subordinate Judge. Immediately after this decree was passed, the first respondent was herself appointed receiver pending receipt of the formal order in Council and the appellant got possession in March, 1933. The appellant claims restitution in the shape of profits of the estate for the period from April, 1929, when the first respondent took possession from the receiver, to December, 1932, when she was herself appointed receiver. The profits of the estate, after allowing ordinary charges, amount to approximately Rs. 1,30,000 for this period.

4. The first respondent contended, firstly, that there could be no. order for restitution in the circumstances of the case, and, secondly that she was entitled to appropriate the profits to the amount due to her under the High Courts orders whereby, the receiver was directed to pay to each party a monthly maintenance of Rs. 1,500 and she claims that she is entitled to set-off, against the surplus, the arrears of this maintenance for the period during which the receiver was in charge and a monthly allowance of Rs. 1,500 for the period during which she herself had possession of the estate. It has to be observed that pending the appeal to the Privy Council, the first respondent was required to pay a reduced maintenance of Rs 500 per mensem to the plaintiff and she was directed to pay the arrears due to him under the previous order as the balances in her hands permitted and she. did in fact pay certain sums towards the arrears.

5. The learned Judges who referred this appeal, are agreed on certain points. They agree that the order of Krishnan, J., fixing for each party a monthly maintenance allowance of Rs. 1,500 cannot be regarded as anything more than a provisional arrangement to be in force during the pendency of the appeal. They are also agreed that the respondent cannot claim in these proceedings a right to appropriate maintenance under any common law right which she may have, so that she must stand or fall by the order of the High Court fixing her maintenance. There is a further fact which has to be stated. The suit originally included a claim for past and future mesne profits, but no issue was framed in this respect and the trial Judge held that the claim for mesne profits had been given up. Before the High Court there was cross-appeal by type plaintiff on the subject of mesne profits which was dismissed. The judgment of the Privy Council does not deal expressly with the claim for mesne profits, but since the decree of the trial Court is restored, it must be taken tha