Judgement Appeal from an order of the above Court (May 22, 1906) affirming an order of the Subordinate Judge of Barabanhi (February 12, 1906). An application was made by the respondents to the Court of the Subordinate Judge under the circumstances stated in their Lordships judgment, under s. 583 of the Code of Civil Procedure, claiming, inter alia, restitution of the profits realized by the appellant mortgagee from the village in suit during his possession under an invalid sale with interest. The judge held that s. 583 did not apply, while the Appellate Court held that it did and remanded the case to determine the amount of the profits. After the amount was ascertained the mortgagee again appealed, and the Judicial Commissioner ruled as follows "The respondents have paid to the appellant the whole amount due under his decree, so that the appellant cannot possibly claim to retain any part of the profits on account of that decree. It was argued that the appellant should be allowed to retain the profits because the decree carried no interest and the appellant lost the use of the purchase-money for a certain time. The circumstance that the decree carried no interest is, in my opinion, altogether irrelevant, and I cannot Law Rep. 36 Ind. App. 197 ( 1908- 1909) Munshi Prag Narain V. Thakur Kamakhia Singh 93 see that the appellant lost the use of the purchase-money for any time owing to anything that took place in execution. As a matter of fact the purchase-money was set off against the amount due under the decree. The decision of their Lordships of the Privy Council in Rodger v. Comptoir dEscompte de Paris (( 1871) L. R. 3 P. C. 465, at p. 475.) shews that the respondents are entitled to interest on the profits." De Gruyther, K.C., and Dube, for the appellant, contended that the respondents remedy was by separate suit and not by an application under s. 583, which related to restitution under a decree and applied only to decrees as defined in s. 2. The final order in this case, which set aside the sale, was an order made under s. 588 (16.), and having regard to s. 2 was not a decree, so that s. 583 did not apply, and did not authorize the procedure adopted by the respondents. Reference was also made to s. 285. The final order in this case, which set aside the sale, was an order made under s. 588 (16.), and having regard to s. 2 was not a decree, so that s. 583 did not apply, and did not authorize the procedure adopted by the respondents. Reference was also made to s. 285. It was also contended that the appellant was entitled to interest on the purchase-money during the time he lost the use of it, and that the respondents were not entitled to interest on their mesne profits see Rodger v. Comptoir dEscompte de Paris. (( 1871) L. R. 3 P. C. 465, at p. 475.) Ross, for the respondents, contended that s. 588 applied. The appellant was both auction purchaser and decree-holder, and the final order setting aside the sale was an order under s. 244 and therefore a decree, and relief was obtainable in the execution proceedings without any necessity for a separate suit. Reference was made to Prosonno Coomar Sanyal v. Kasi Das Sanyal. (( 1892) L. R. 19 Ind. Ap. 166, 169.) The respondents were entitled to interest on their mesne profits. The appellant had never paid anything in cash, but only by set-off against the amount of his decree, which had subsequently been satisfied with interest. Consequently he had no claim for further interest on money of which he had never lost the use. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is a very idle appeal. In November, 1897, the appellant obtained a decree against the predecessor in title of the respondents declaring that on May 1, 1898, Rs. 85,866.15.6 would be due to him on the footing of a certain mortgage bond, and ordering a sale in default of payment. In February, 1901, the property was put up to sale by auction in execution of the decree. It was knocked down for Rs. 82,000 to the appellant, the decree-holder, who had leave to bid. On December 15, 1901, the appellant as purchaser obtained possession of the property. In September, 1903, the sale was set aside for irregularity. In March, 1904, the respondents paid to the appellant the sum found due to him by the decree and possession of the property was restored to them. Then the respondents applied in the execution proceedings for mesne profits and interest. In September, 1903, the sale was set aside for irregularity. In March, 1904, the respondents paid to the appellant the sum found due to him by the decree and possession of the property was restored to them. Then the respondents applied in the execution proceedings for mesne profits and interest. The application was dismissed on the ground that it ought to have been made by separate suit. The Court of the Judicial Commissioner on appeal reversed that order. Thereupon the Lower Court made an order allowing mesne profits with interest and dismissing a claim on the part of the appellant to interest in respect of his purchase-money for the period during which he was held accountable for profits received. On appeal the Court affirmed this order. The present appeal has been brought from this last-mentioned order. In effect it involves both orders of the Court of the Judicial Commissioner. Law Rep. 36 Ind. App. 197 ( 1908- 1909) Munshi Prag Narain V. Thakur Kamakhia Singh 94 It is not disputed that the respondents are entitled to recover mesne profits with interest. But it was argued that, having regard to certain provisions in the Code of Civil Procedure taken in connection with the definition of a " decree " in s. 2 of the Code, a separate suit was required, although it was admitted that precisely the same relief would be obtained whether the applica tion were made in a separate suit or in the execution proceedings. It was also argued that the appellant was entitled to interest in respect of his purchase-money. In their Lordships opinion there is no substance in either of these contentions. The claim of the respondents to have the questions in dispute determined in the execution proceedings is justified by ss. 583 and 244 of the Code of Civil Procedure. Even if the point were doubtful, their Lordships would not be disposed, at this stage of the proceedings, to permit the expense and delay of a separate suit. The claim of the appellant to be allowed interest is absurd. The purchase-money was not actually paid. It was set off against the amount due under the decree. The miscarriage at the sale in February, 1901, was the fault of the appellant. The claim of the appellant to be allowed interest is absurd. The purchase-money was not actually paid. It was set off against the amount due under the decree. The miscarriage at the sale in February, 1901, was the fault of the appellant. It is out of the question that he should be allowed to make a profit at the expense of the respondents out of his own error, and so in effect recover interest not allowed to him by the decree. Their Lordships will therefore humbly advise His Majesty that the appeal should be dismissed. The appellant will pay the costs of the appeal.