Thadani, C.J. -
(1.) THIS is a revision application under the provisions of S. 115, Civil P.C., directed against an order dated 29 -6 -50, passed by the learned Additional Subordinate Judge, L. A. D., 'Dhubri, by which he allowed an application made by the O.P. under Ss. 144, 151 and 47, Civil P.C.
(2.) THE facts material to the application are these The petitioners had obtained a mortgage decree against the opposite party mortgagor and in execution of the mortgage decree, the mortgage lands were sold at an auction and purchased by the petitioners. On 4 -7 -42, the petitioners obtained possession of the mortgage lands. The O.P. applied to the Calcutta High Court to set aside the sale, and the High Court set aside the sale on 4 -2 -1948. The O.P. then made an application to the Subordinate Judge, Dhubri, for restitution of the mortgage lands and mesne profits from 4 -7 -1942. The learned Subordinate Judge ordered restitution of the mortgaged property to to the Opposite Party. In the revision application, it is stated in para. 5 that after the restitution of the mortgaged property was made to the Opposite Party, the Opposite Party made a second application for mesne profits. The statement as to a second application is not substantiated by the record. The application of the Opposite Party for mesne profits was resisted by the petitioners on the ground that an application for mesne profits was incompetent, that the remedy lay by a suit on payment of ad valorem court -fee The learned Sub -Judge, however, took the view that, while S. 144, Civil P.C., did not apply in terms, he was competent to act under Ss. 151 and 47, Civil P.C., and that the application was not required to be stamped on an ad valorem basis. It is against this order of the learned Sub -Judge that the revision application has been made.
(3.) THE Learned Counsel for the petitioners has relied upon Rudra Pratab Singh v. Sasada Mahesh Prasad,, 47 All. 543 in support of his contention that an enquiry for mesne profits is a proceeding in continuation of the original suit. This may be conceded, but we do not think the case reported in 47 Allahabad has any application to the facts before us. The learned Judges of the Allahabad High Court were not dealing with an application for restitution made under S. 144 Civil P.C., but an application under O. 20, R. 12, Civil P.C. Nor do we think has the case of Shankar Appaji Patil v. Gangaram Bapuji, 52 Bom. 360 any application to the facts of the present case. The Bombay case, like the Allahabad case, did not involve the consideration of the question whether an application for restitution of immovable property, and mesne profits, where S. 144, Civil P.C., did not apply in terms, could or could not be granted under S. 151, Civil P.C. Likewise, the case reported in Bhatu Ram v. Fogal Ram, 5 Pat. 223 has no application to the facts of the present case. Mr. Roy has referred to other 4 cases reported in Dwarha Nath v. Debendra Nath,, 33 Cal. 1232; Jinaram v. Nand Ram,, 44 All. 407; Balmakund Marwari v. Basanta Kumari Dasi,, 3 Pat. 371; and Rambir Jhawan, v. Banke Thakur,, 7 Pat 794; but in view of the decision of their Lordships of the Privy Council reported in Jai Berham v. Kedar Nath, : A.I.R. 1922 P.C. 269, it is not necessary to refer to them. Lord Carson, delivering the judgment of the Judicial Committee observed:
It is the duty of the Court under S. 144, Civil P.C. 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 Court to act rightly and fairly according to their circumstances towards all parties involved. As was said by Cairns L.C. in Rodger v. The Comptoir d'Escompte de Paris,, 1871 3 A.C. 465. One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole form the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.;