In matters of restitution, the principle of placing parties in their previous position prevails, and the rights accruing during the period of litigation should not be taken into account.

Sadasiva Aiyar, J.

1. This appeal has arisen out of. an application under Section 144 of the Civil Procedure Code in restitution. The defendants were the petitioners in restitution and they are the respondents in this Court. The plaintiff is the appellant. He got a decree in Original Suit No. 381 of 1905 of the Gudivada District Munsifs Court for ejecting the defendants, who were his tenants, the decree awarding him the mesne profits from Fasli 1313 till delivery of possession. The decree was passed on the 23rd December 1907. He got possession in execution of that decree in 1908. But the case went up on second appeal to the High Court and the suit was then wholly dismissed with costs. The defendants then applied under Section 144 to be restored to possession and they got back possession in Fasli 1321. They also applied for recovery of mesne profits wrongfully received by the plaintiff in Fadis 1318, 1319 and 1320. The plaintiff claimed to set off against the mesne profits the arrears of rent due to him for Fadis 1313 to 1317 as landlord and also the arrears of rent which would have been due to him, for Faslis 1318 to 1320 if the defendants had remained in possession as tenants and if he (the plaintiff) had not dispossessed them in execution of the decree of the Court of the District Munsif, which was reversed finally.

2. The District Munsif in ordering restitution upheld the plaintiffs contention so far as the rents which would have been payable for Faslis 1318 to 1320 are concerned, but disallowed the contention claiming to set off the arrears of rent for Faslis 1313 to 1317. The defendants appealed to the Subordinate Judge as regards the deduction of the rent for Faslis 1318 to 1320 and the plaintiff filed a Memorandum of Objections against the disallowance of the deduction of the rents for Faslis 1313 to 1317. The learned Subordinate Judge allowed the appeal and dismissed the Memorandum of Objections. And the plaintiff has filed this appeal against the decision of the Subordinate Judge, contending that he is entitled to the deductions of both the above sums. So far as the rents for Faslis 1313 to 1317 are concerned, that is a question which has absolutely nothing to do with restitution. By the decree of the High Court, the plaintiffs possession in Fasils 1318 to 1320 became wrongful and the defendants are entitled to be placed, as far as possible, in the same position as they would have been if they had been in possession in Faslis 1318 to 1320. Their liability, if any, to pay rent for Faslis 1313 to 1317 has nothing to do with their right to get restitution for having been put out of possession in -Faslis 1318 to 1320. The contention of the appellants learned Vakil under this head must, therefore, be at once rejected.

3. As regards the rent claimed for Faslis 1318 to 1320, it is difficult to understand how, when the plaintiff himself remained in possession of the lands, the defendants became liable to pay any rents to him as landlord. But reliance is placed upon the case in Bhyrub Chunder Mojoomdar v. Huro Prosunno Bhuttacharjee Chowdhry 17 W.R. 257. That was a case decided so long ago as in January 1872 before the enactment of the comprehensive Civil Procedure Code of 1877. It was not a case of restitution at all. There, the tenants brought a suit against their landlord for possession of land from which they had been wrongfully ejected without the intervention of the Court and for mesne profits. It was held that as the landlord, though a wrongdoer, would have been entitled to rents from the plaintiffs, the mesne profits due to the plaintiffs ought to be calculated after deducting the rent due to the landlord. Speaking for myself, I have grave doubts as to the correctness of that decision. Mesne profits" is defined in the Civil Procedure Code as those profits which a person in wrongful possession of the suit property actually received, etc." The decision in Bhyrub Chunder Mojoomdar v. Huro Prosunno Bhattacharjee Chowd