The main legal point established in the judgment is the interpretation and application of Section 144 of the Civil Procedure Code, emphasizing the requirement of the party being in possession of the property for restitution.

Anantakrishna Aiyar, J.

1. The appellant before me was the 3rd plaintiff in O.S. No. 205 of 1921 on the file of the District Munsifs Court of Badagara. The suit was for redemption of four items of properties on the footing of a mortgage. The plaintiffs got a decree in the Trial Court for redemption but only in respect of three of the four items mentioned by them in their plaint. The decree directed that on payment by the plaintiffs into Court of a particular amount found to be due on the mortgage, the defendants should put the plaintiffs in possession of the three items. The plaintiffs paid the money into Court in accordance with the directions contained in the decree and obtained possession of the items decreed to them by the Trial Court. The 3rd plaintiff however preferred an appeal to the Lower Appellate Court against that part of the Trial Courts decree which disallowed her the other item claimed in the plaint. The result of the appeal was that the Appellate Court modified the decree of the Trial Court by decreeing the other item also in favour of the 3rd plaintiff. The 3rd plaintiff (the decree-holder) having obtained possession of this extra item which she succeeded in getting a decree for in appeal, filed an application to recover mesne profits due in respect of this item from the date on which she deposited the money into Court to the date, on which she obtained possession of that item. Her application was resisted by the 12th defendant, who was the only person interested in respect of this item. The Trial Court, however, held that the 3rd plaintiff was entitled to recover mesne profits as. on the footing of restitution and accordingly directed the 12th defendant to pay mesne profits to the 3rd plaintiff for the period in question. The 12th defendant preferred an appeal. The learned Subordinate Judge of Tellicherry came to the conclusion that Section 144, Civil Procedure Code, could not be applied to such a case as the present, and he accordingly reversed the Trial Courts order and disallowed the decree-holders claim for the mesne profits in question. The 3rd plaintiff, the decree-holder, has accordingly preferred the present Civil Miscellaneous Second Appeal.

2. On her behalf it was contended by her learned Advocate that the case would substantially come under Section 144, Civil Procedure Code. He argued that the Trial Courts decree was varied by the Appellate Courts, decree and if the Trial Court had passed the decree which was ultimately passed by the Appellate Court, the 3rd plaintiff would have been in a position to obtain possession of this item and enjoy the mesne profits or income arising therefrom and that it was owing to the decree, erroneous in this respect, passed by the Trial Court that she has been deprived of possession of the mesne profits arising from this item. He also emphasised the words "or otherwise" occurring in Section 144, Civil Procedure Code. He drew my attention to certain Privy Council cases, Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan (1887) L.R. 15 I.A. 12 : I.L.R. 10 A. 166 (P.C.) and Jai Berham v. Kedar Nath Marwari (1922) L.R. 49 I.A. 351 : I.L.R. 2 Pat. 10 : 44 M.L.J. 735 (P.C.) where the scope of Section 144, or of Section 583 in the prior Code, has been discussed, by the Privy Council. On behalf of the respondent it was argued that Section 144 would apply only to cases where in execution of a decree passed by one Court a benefit is received by the decree-holder and thereafter that decree is reversed or set aside subsequently by a competent Court, and that in such cases the Court should place the parties in the position which they would have occupied but for such a decree which was varied or set aside. In the present case, the 3rd plaintiff was not in possession of this item at the date of the plaint or at the date of the Trial Courts decree. Her suit was to get possession of the same, among other items, That being so, it is rather difficult to apply that portion of Section