P.K. Tare, J.
1. This appeal is by the decree-holders against the order, D/- 16-12-1939 passed by Shri S. M. Afzal, Additional District Judge. Durg, in Miscellanous Civil Appeal No. 7 of 1959, reversing the order, D/- 31-7-1959, passed by Shri J. D. Shrivastava, Civil Judge, Class II, Bemetara, in Miscellaneous Judicial Case No. 45 of 1958.
2. One Bhagwatiprasad, since deceased (who was defendant 4 in the Civil Suit) mortgaged with the original fifth defendant, Ramjilal and his brother, Rainkrishna, his. 4 annas share in village Andhiyarkhor on 15-10-1923, The whole of the Village share relating to four annas interest excluding cultivating rights in sir lands was the subject-matter of the mortgage for a consideration of Rs. 3000/- in favour of Ramjilal and his brother, Ram'krishna. On the basis of the deed, the mortgagees obtained a decree for foreclosure in Civil Suit No. 75 of 1930.
The decree-holders were in possession of the foreclosed property till they sold the same to the present appellants on 5-4-1942 by a registered sale deed. The sale deed recited that all the foreclosed property, along with khudkast lands appurtenant to the village share was sold. The present appellants claimed to have obtained possession of the village share, including khudkast lands from the mortgagees They alleged that they were dispossessed in the year 1951-52.
3. The defence of the present respondents was a denial of all the allegations of the plaintiffs. They claimed to be in possession of the suit lands adversely to the plaintiffs and their predecessors, namely, Ramjilal and Ramkrishna.
4. The Trial Judge, upholding the plaintiff's claim, decreed the suit for possession, while the first appellate Court reversed that decree. In Second Appeal No. 832 of 1955 filed by the plaintiffs (present appellants), this Court, by judgment, D/-- 22-7-1958, allowed the appeal and restored the decree of the trial Court.
5. The appellants, after obtaining a decree from the trial Court, filed an application for execution on 21-6-1954. On 22-6-1954, the defendants, applied to the trial Court for stay under Order 41, Rule 5(3) of the Civil Procedure Code. Accordingly, the execution was stayed till the defendants obtained a stay order from the first appellate Court, On 17-7-1954, the first appellate Court granted a stay order in favour of the defendants. The same was communicated to the trial Court on 23-9-1954. Ultimately the first appellate Court allowed theappeal on 21-9-1955, whereby the plaintiff's suitwas dismissed.
6. After the plaintiffs' claim was decreed in Second Appeal No. 832 of 1955, they applied for execution of the decree. Accordingly, possession of the suit fields was delivered to them on 22-8-1959. In the execution proceedings, the plaintiffs claimed that they were entitled to restitution regarding the mesne profits accruing from the year 2953-54, that is, the filing of the suit on 2-5-1953 till 22-8-1959, that is delivery of possession of the property.
They contended that the proceedings for execution relating to delivery of possession of the property were stayed due to the stay order passed bythe first appellate Court; and, subsequently, the plaintiffs 'were prevented from executing the decree, as the same had been set aside by the first appellate Court. As the decree of the first appellate Court had been set aside, the plaintiffs were entitled to claim restitution under Section 144 of the Civil Procedure Code in respect of mesne profits for such period although they had not claimed any mesne profits in the suit.
7. The respondents' contention was that the remedy of the decree-holders was to file a separate unit for mesne profits; particularly, when no mesne profits had been claimed in the suit itself. Therefore, they alleged that it was only the decree of the High. Court that was executable and the possession of the property could be delivered in execution of that decree. But, in no case, was Section 144 of the Civil Procedure Code attracted. The learned Judge of the executing Court held that the matterwas governed by Section 144 of the Civil Procedure Code. Mesne profits for the said period were determined at Rs. 2480/- and, therefore, an order awarding mesne profits for the amount of Rs. 2433/9/-as claimed, was passed by the trial Judge.
8. The judgment-debtors appealed to the Court of the Additional District Judge, who held that the matter was not governed by Section 144 of the Civil Procedure Code. For this purpose, the learned Judge relied on a Division Bench case of this Court in Khwaja Allawali v. Kesarimal, ILR (1947) Nag 176 : (AIR 1947 Nag 239).
9. The learned counsel for the decree-holder appellants urged that the first appellate Court has put a very restricted meaning on Section 144 of the Civil Procedure Code. It was submitted that although the decree-holders may not have claimed mesne profits in the original suit, the Court, while executing the decree, would have the power to determine mesne profits for the period during which they were unable to take possession of the propertyon account of the stay order passed by the first appellate Court and the period during which, they were unable to execute the decree of the trial Court on account of reversal by the first appellate Court.
It was, therefore, suggested that they were entitled to take possession of the property, as per the decree of the trial Court, which was ultimately upheld by the High Court. Had the decree of the first appellate Court not intervened, they would have got possession in pursuance of the decree of thetrial Court. Therefore, according to the learned counsel, the matter was squarely governed by Section 144, of the Civil Procedure Code. In the alternative, he invoked the inherent powers of this Court in the matter of restitution on the principle that no person should suffer due Co an action of the Court
10. The only question involved in the present appeal is whether the appellants can be granted mesne profits from 2-5-1953 to 22-8-1959 under Section 144 of the Civil Procedure Code or whether their remedy would be to file a separate suit. Section 144 of the Civil Procedure Code is as follows:
'(1) Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining, any restitution or other relief which could be obtained by application under Sub-section (1).' It will, therefore, be seen that the requisite conditions for applicability of the section are that if a party is entitled to a benefit by way of restitution on the basis of a decree, which varies or reverses the decree of the Court below, the party, who is deprived of the benefit due to the decree which has been reversed, can be recompensed by the Court of first instance in the matter of costs, payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or such reversal.
Therefore, what is necessary is that any of the items must be properly consequential on such variation or reversal. For that purpose, it would not be necessary that such consequential relief upon variation or reversal should have been made in the original suit. Further, if a matter is governed by Section 144 of the Civil Procedure Code, a separate suit is specifically barred. The same would be tenable, in case Section 144 of the Civil Procedure Code is not at all attracted.
11. In the case of ILR (1947) Nagpur 176: AIR 1947 Nag 239 decided by a Division Bench consisting of Hidayatullah J. (as he then was) and Padhye J., the learned Judges made the following observations :
'In the first place, there is an essential difference between restitution and execution. Restitution means in law restoring to the party, on the variation or reversal of a decree, what has been lost to him in execution of the decree reversed or varied or in consequence of that decree. Execution, on the other hand, is the enforcement of the direction in the executable decree or order which are usually supposed to be self-contained and to give effect to them. The right of restitution is not based on any statute or on the mandates of aCourt contained in its decree or order but on the inherent jurisdiction which every Court has to repair the injury done to a suit or as a result of its wrong action or decision a principle which is contained in the well-recognized maxim 'actus curiae neminem gravabit'. Their Lordships of the Privy Council in a case reported in Jai Berham v. Kedar Nath Marwari, ILR 2 Pat 10 : (AIR 1922 PC 269), observed thus :
'It is the duty of the Court, under Section 144 of the Civil Procedure Code, to 'place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed'. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Courtto act rightly and fairly according to the circumstances towards all parties involved.''
Further on, the learned Judges constituting the Division Bench observed as follows :
'Section 144 of the Civil Procedure Code doesnot create the right of restitution. It merely confers power and prescribes procedure by which a due relief can be given to the injured party. It gives to the Court of first instance a wide power in the matter of causing restitution and determining all questions connected therewith. The Court executing the decree or order is on the other hand bound to enforce the decree or order as it stands and has no jurisdiction either to question it or to travel beyond the same. In fact execution proceeds on the basis that a valid decree exists which is to be executed while restitution is to be caused 'because a decree or order which existed and which, was executed becomes non-existent wholly or partially.
The jurisdiction, to cause restitution or to determine all questions in connection therewith lies onlywith the Court of first instance while the power to execute a deqree is either in the Court passing the decree or the Court to which the decree may be transferred for execution.'
12. The learned Judges were, however, concerned with the question whether a restitution application would be governed by Article 182 or 1.81 of the Limitation Act. Ultimately, they came to the conclusion that a restitution application would be governed by Article 181 of the Limitation Act.
13. In M. A. Wahid v. Zubeda Begam, ILR (1951) Nag 780 : (AIR 1952 Nag 190), a Division Bench consisting of Bose C. J. (as he then was) and Mangalmurti J. held that a Court would always have inherent powers to order restitution when an order in proceedings initiated by an application is varied or modified. The learned Judges explained the distinction between the provisions of Section 144 of the Civil Procedure Code and the inherent jurisdiction of the Court under Section 151 of the Civil Proce_dure Code read with Section 144 of the Civil Procedure Code. The learned Judges observed that while Section 144 is mandatory, exercising the inherent powers of the Court would be discretionary and in the interest of justice as the Court considers necessary.
14. The learned counsel for the appellants invited attention to the observations of a DivisionBench consisting of Sinha C. J. (as he then was) and Hidayatullah J. (as he then was) in Ratirnsi v. Jai-singh, ILR (1955) Nag 425 : ((S) AIR 1955 Nsg 29). The learned Judges made the following observations :
'The Court has ample powers under Section 144 of the Code of Civil Procedure to make restitution to the party which has been deprived of the fruits of its decree by an order of the Court at the instance of the judgment-debtor. This power, as has been held on authority, is not derived merely from Section 144 of the Code, but is inherent in the nature of things. The executing Court can, acting under Section 151 read with Section 47, make restitution to the party who has thus been deprived, of the fruits of his decree by an order of the Court. It is not necessary in such cases that the order passed should be incorporated into, and made a part of, the original decree. This has been held in a large number of cases and the following merely illustrate the principle.'
15. Another Division Bendh consisting of Hidayatullah J. and R. K. Rao J. in Digambar v. Himmat, ILR (1955) Nag 1042 followed the dictum laid down by their Lordships of the Privy Council in ILR 2 Pat 10 : (AIR 1922 PC 269) (supra) and held that it would be the duty of the Court to see that no party suffers on account of the wrong actions of the Court. Another Division Bench consisting of V. R. Sen J. and Bhutt J. (as he then was) in Shamrao Bhagwantrao v. Asaram Laxmandas, 1956 Nag LJ 85 : ((S) AIR 1956 Nag 129) adopted the same view,
16. The learned counsel for the respondents, however, urged that the said cases might be applicable, if the appellants had claimed mesne profits in the suit originally. As they had failed to claim mesne profits in the suit, the same could not be granted by way of restitution. I am unable to accept this contention of the learned counsel for the respondents. Section 144, C. P. C. is wide enough to include the several reliefs relating to refund, grant of interest, delivery of moveable or immoveable property, damages, compensation and mesne profits. Even though a party may not claim rnesne profits in the suit, the same can be granted by way of restitution, if on account of the action of the Court a party is deprived of the benefit of the decree. The Court could certainly allow that benefit to be reaped by the party, who would be rightly entitled to the same under the decree of the last appellate Court.
17. So far as the present case is concerned, it is true that the appellants had merely claimed the relief of possession of the suit fields in the plaint. They did not claim any mesne profits. Therefore, Order 20, Rule 12 of the Civil Procedure Code was not attracted. It would be attracted, where a claim for mesne profits that have accrued is made in the plaint. Under those circumstances, the Court has the power to direct determination of the future mesne profits during the pendency of the suit and till the delivery of possession.
But where no claim of mesne profits is at all made, Order 20, Rule 12 of the Civil Procedure Code does not come into play, at all. But, the difference between the said provision and Section. 144 of the Civil Procedure Code is that although aclaim for mesne profits is not made by a party in the suit, the Court would be able to grant mesne profits, in case the requirements of Section 144 of the Civil Procedure Code are fulfilled. Here it is not necessary for mo to decide whether the same thing can be done under the inherent jurisdiction of the Court under Section 151 of the Civil Procedure Code, read with Section 144 of the Civil Procedure Code. But, I have no doubt that where a party is deprived of possession of property due to an order or decree of the Court below, which is later on reversed or varied by the appellate Court, the Court could under the powers conferred by Section 144 of the Civil Procedure Code place the party, who has been deprived of possession temporarily in the same position as if the reversed decree had not at all been passed. Had the reversed decree not at all been passed and had the Court whose decree has been reversed not granted the stay order, the parly would be entitled to immediate delivery of possession in pursuance of the decree of the first Court, which has ultimately been upheld by this Court in the second appeal.
Therefore, in my opinion, the question of mesne profits for the period from 22-6-54 to 22-8-1959 clearly falls within the ambit of the powers conferred by Section 144 of the Civil Procedure Code. As the matter is governed by the said section, subsection (2) of the section provides that no separate suit shall lie. It is only to that extent that the trial) Court can grant relief in the execution proceedings, namely, to the extent of restitution alone. The powers under Order 20, Rule 12 cannot be resorted to, as the appellants never made a claim for mesne profits in the suit.
18. The learned counsel for the respondents urged that Section 144 of the Civil Procedure Code was not attracted, as the decree of the first appellate Court was never executed by the respondents. Had it been so executed the question of restitution might arise in that event. It was therefore suggested that what was executable under the circumstances was the decree of the High Court, which did not and could not involve any question of restitution.
19. I am unable to accept this restricted interpretation of Section 144 of the Civil Procedure Code, The wording of the section does not warrant an interpretation that the question of restitution would arise only if the reversed decree is executed. Oil the basis of the view taken by the learned Judges of the different Division Benches, it can be emphatically stated as a correct proposition of law that the question of restitution may arise even though the reversed decree is not executed and even though the relief sought in the restitution proceedings is not specifically claimed in the plaint.
The wording of the section is wide enough to include situations where a party is deprived of the benefit of an order or decree of. a Court on account of a wrong reversal or variation by the appellate Court, which wrong appellate decree is reversed or varied by the next appellate Court or the final Court of appeal. If these circumstances be present, the question of restitution will properly arise on such correct reversal of an incorrect reversing decree.
In that event, the Court of first instance hasthe power to order refund cf costs, payment o interest, damages, compensation and mesne profits, which would be properly consequential on such variation or reversal. It may be that a suitor may have claimed mere possession of property in the plaint without claiming any of the items mentioned in Section 144 of the Civil Procedure Code. Bat, that, by itself, will not preclude the Court granting restitution to grant such further reliefs as would be properly consequential on such variation or reversal.
20. It was such a restricted interpretation of Section 144 of the Civil Procedure Code that persuaded the learned appellate Judge to hold that the section was not attracted in the present case. I find that that interpretation would be contrary to the liberal interpretation put by more than one Division Bench of this Court based upon the law as enunciated by their Lordships of the Privy Council. Therefore, it is not possible to accept the contention of the learned counsel for the respondents in that behalf. I am unable to read those cases in the light of a restricted interpretation of Section 144 of the Civil Procedure Code, as suggested by the learned counsel for the respondents.
21. The trial Judge determined the mesne profits from 1953 to 1958 at Rs. 2433/9/-. As.) Order 20, Rule 12 of the Civil Procedure Code was not applicable to the present case, no mesne profits could be claimed by the appellants for any period1 prior to the date of the stay order passed by the Court of first instance, which was continued by the first appellate Court. The trial Judge granted mesne profits for the year 1953-54 also, which could not be done. According to the learned Judge the mesne profits for one year come to Rs. 496/-.
As such, mesne profits for 5 years were calculated at Rs. 2480/-. The present appellants had claimed only Rs. 2433/9/- as mesne profits. Hence their claim was decreed to that extent. Therefore, I am of opinion that the appellants cannot claim mesne profits under Section 144 of the Civil Procedure Code for the year 1953-54. That amount will have to be deducted from Rs. 2480/-. Consequently, their claim for Rs. 1984/- alone can he ordered to be paid by way of restitution.
22. There is one more question to be decided, namely, admission of additional evidence sought by the appellants. It may be noted that in the restitution application, the appellants did not mention the stay order passed by the first appellate Court. They merely claimed to execute the decree of the High Court. As a matter of fact, the question regarding restitution arises only on the basis of the stay order passed by the trial Court.
23. The learned counsel far the respondents opposed the appellants' prayer for admission of additional evidence. In the present case, I think it necessary to allow additional evidence to be adduced in the interest of justice. In the absence of the same, no complete adjudication of the question arising in the present appeal can be made. It would be necessary for the Court to admit the additional evidence for the purpose of doing complete justice between, the parties.
There can be no doubt that where the Court feels the necessity of admitting additional evidence,the same can be allowed, as observed by Midholkar J. in Indrachand v. Bhagwandas, ILR (195i) Nag 209 : (AIR 1952 Nag 248). Their Lordships of the Supreme Court have laid down the principles for exercising discretion to admit additional evidence in Arjansingh v. Kartarsingh, AIR 1951 SG 193. The discretion that is being exercised by this Court is, in my opinion, in consonance with the principles laid down by their Lordships of: the Supreme Court. Therefore, I admit the additional evidence for the purpose of doing complete justice between the parties.
24. AS a result, this appeal succeeds and is allowed. The order of the first appellate Court is set aside and that of the trial Court is restored subject to the modification that the mesne profits to be paid by the respondents to the appellants shall be Rs. 1984/- in stead of Rs. 2433/9/-. The appellants shall be entitled to all their costs throughout. Counsel's fee in this Court Rs. 100/-, if certified. Leave for filing letters patent appeal is refused.