HER HIGHNESS PRINCESS SREEMATHI SHREE RADHA BAI MAHARANEE SAHIBA (DIED) BY HER AGENT HIS HIGHNESS PRINCE SUDARSAN Vs. BJAGANNADHA NAIDU

JUDGEMENT

(1.) This appeal is against an order of the learned District Judge of Chingleput, declining to grant restitution to the appellant confirming the order of the learned Subordinate Judge of Chingleput. The main facts are not in dispute. On 10 July 1928, house and ground No. 69, Subramania Koil Street, Alandur, the property of the appellant, was sold in Court auction and purchased by respondent 3 in this appeal. The appellant judgment-debtor made an application to set aside the sale under Order 21, Rule 90, Civil P.C. The ground he alleged was that on 4th July 1928, on his application the Court passed an order giving him leave to raise money by private alienation of the property and granted two weeks time for the said purpose, but in the meanwhile sold the property on 10 July 1928. The mistake occurred thus: The sale was originally fixed to 4 July 1928; on that date when the judgment-debtor applied for time, the learned Subordinate Judge who was dealing with that application passed two orders, viz., by one he adjourned the sale to 10 July and by another he gave leave to raise money under Order 21, Rule 83 and put off the sale till 18 July. The application to set aside the sale was refused by the learned Subordinate Judge and also by the District Judge of Chingleput. But on revision Curgenven, J. in C. Rule P. No. 1498 held the Court committed material irregularity in holding the sale on the 10 and remanded the petition for inquiry into the question whether substantial injury has resulted by the sale. On 5 November 1931, the learned District Judge came to the conclusion that substantial injury did result by reason of the said material irregularity and set aside the sale. Thereupon an application was made by the judgment- debtor on 22 February, 1932 being M.P. No. 95 of 1932 on the file of the Subordinate Judge of Chingleput for re-delivery of the property and also for mesne profits. An order was made for re-delivery to be given by 10 March 1932. During the course of the said pro-weeding an order was passed on 29 April 1932, in and by which the purchaser was asked to file an account of the rents and profits of the said property during the period he was in possession and the said statement also appears to have been filed by the auction purchaser, Rajagopal. Possession was delivered on 11 March 1932. The present application, M.P. No. 399 of 1932, has been made for directing the auction purchaser to pay the appellant the mesne profits of the property. Both the Courts have dismissed his application on the ground that under Section 144, Civil P.C., no remedy by way of restitution lies against a bona fide auction purchaser. In this view both the lower Courts went wrong. No doubt it is a well recognized rule that a bona fide purchaser at a sale held under a Court's decree or order which is subsequently reversed is not affected by the reversal and the remedy by way of restitution does not lie against him, but this rule has no application to cases where through a mistake or material irregularity of the Court the property has been sold such as when one property has been attached and another has been sold or where as in this case the property was sold on the one date whereas it ought to have been sold on another date. In such cases restitution is ordered not strictly under Section 144 but Under the inherent power of the Court under Section 151, Civil P.C. As has been stated by the Privy Council in Rodger v.. The Comptoir D escompte De Paris (1870) 3 PC 465 at p. 475, it is the duty of the Court to take care that no act of the Court in the course of the whole proceedings does an injury to the suitors in the Court.

(2.) Subramania Ayyar, J. explains the principle thus in Doraiswami Iyer V/s. Annaswami Iyer (1900) 23 Mad 306, at p. 312: All that the one has gained and all that the other has lost is due to the agency of the Court and, therefore, no injustice is done in restoring She party wrongfully dispossessed without stopping to investigate the rights of the party who has thereby gained the possession. He is in no worso position after his being put out by the Court than he would have been if the Court had never acted and the Court cannot, without putting him out, undo its own wrong.

(3.) It is on this principle that in the case which went up to the Privy Council in Jai Berham v. Kedar Nath Marwari AIR 1922 PC 269, when one property has been attached and another has been sold, the sale was set aside and the re-delivery ordered. In ordering re-delivery, the learned Subordinate Judge who dealt with the matter in the first instance failed to give mesne profits. But the High Court on appeal directed mesne profits to be given. The Privy Council upheld the order but in regard to mesne profits a question arose whether the judgment, debtor was entitled to interest on mesne profits and their Lordships observed that the equities of the case will be met by not allowing interest on the purchase money to a refund of which the auction purchaser was held entitled: Jai Berham V/s. Kedar Nath Marwari AIR 1922 PC 269, at p. 17. This case is clear authority for the position that in ordering restitution of the property under Section 151, Civil P.C., it is open to the Court to grant restitution also of the profits of the said property. If the Court has jurisdiction to grant restitution there is no reason why the restitution should be limited to the property alone and the judgment-debtor denied the restitution of the profits which he has been deprived of. As has been held by Petheram, C.J. in Mookond Lal V/s. Mahomed Sami Meah (1887) 14 Cal 484, at p. 486: If the Court has got an inherent right to order restitution of the thing which has been improperly taken, as part of that power it must have the right and power to order restitution of everything which has been improperly taken. If they have that power they have the power not only to order restitution of the property itself but restitution of any proceeds which have been improperly taken during the time that it was in the possession of the person who was not entitled to it. These proceeds which have been received are the mesne profits of the property; and it being admitted that there is a power in the Courts to order restitution of the property, it must follow that they have the power to order restitution of the mesne profits.