JUDGMENT

Malik, J. - The facts of this case are given in the referring order dated 15th April 1946.

2. One Fateh Bahadur Singh had executed a simple mortgage for Rs. 1700 in favour of Nandan Sahu on 26th May 1911. The mortgagee filed a suit, No. 825 of 1923, against Fateh Bahadur Singh and obtained a preliminary decree on 7th April 1924. A final decree for sale was passed on 24th February 1925, for Rupees 37,525 odd. Jogendra Nath Singh, son of Pateh Bahadur Singh, then filed a suit, No. 77 of 1927, for a declaration that the property included in the mortgage was joint family property, that the mortgage was without legal necessity and that he joint family was not, therefore, bound by the decree or liable for payment of the mortgage debt. During the pendency of that suit the whole of the mortgaged property was sold in execution of the decree in suit No. 325 of 1923 and was purchased by the decree-bolder. The suit of Jogendra Nath Singh was dismissed by the trial Court on 10th April 1928, and the auction sale was thereupon confirmed and the auction purchaser got possession of the property on 28th December 1928.

3. Jogendra Nath Singh filed an appeal (First Appeal No. 252 of 1928) in this Court on 21st June 1928. This appeal was allowed on 12th April 1932. The decree of this Court, so far as it is relevant for our purposes, is as follows:

It is ordered and decreed that this appeal be allowed, that the decree of the Subordinate Judge of Basti be set aside and that a decree be and it hereby is passed in favour of the plaintiff for a declaration that the decree dated 7th April 1924, passed in suit No. 325 of 1923 by the Court of the Subordinate Judge of Basti is valid for recovery of Re. 1,700 with simple interest thereon at the rate of Rs. 18 per cent, per annum, calculated up to 7th October 1924, the date fixed for payment of the said decree and pendente lite interest as directed in the aforesaid decree upto the date of realisation, that the final decree which was subsequently passed in the said suit on 24th February 1925 is also valid for the amount calculated in the manner stated above and capable of execution by sale of the mortgaged property in suit for satisfaction of that amount, that the aforesaid decrees are invalid as regards interest in excess of the amount which will be arrived at on calculation in the manner already mentioned above and that the auction held on the basis of the said final decree during the pendency of this appeal shall not stand.

4. As a result of this decision the sale was set aside and possession was delivered back to the joint family consisting of Fateh Bahadur Singh and Jogendra Nath Singh on 26th April 1933.

5. An application was filed on 2nd March 1936 by Jogendra Nath Singh for the relief that Nandan Sahu be directed to pay the profits in respect of the property which he had purchased at the auction and which had remained in his possession from 29th June 1927 which, it is now admitted, was a wrong date and should have been 28th December 1928 up to the 26th April 1933. This application is headed as being under Sections 151 and 144, Civil P.C.

6. The facts, so far set out, are not denied. It is not denied that Nandan Sahu had purchased the property at auction in execution of his decree in suit No. 325 of 1923 and had got possession of the same on 28th December 1928. It is further not denied that, as a result of the decree in First Appeal No. 252 of 1928, the auction Bale was set-aside and he had to restore possession on 26th April 1933. He had, therefore, remained in possession from 28th December 1928, to 26th April 1933, under an auction sale which had been expressly set aside on the ground that the decree in execution of which the property had been sold was not binding on the joint Hindu family of Fateh Bahadur Singh and his son Jogendra Nath Singh.

7. This application was opposed on the ground that Section 144, Civil P.C., did not apply to a case where a decree had not been set aside or modified by a su