JUDGMENT 1. We are invited in this Rule to consider the legality of an order in a claim case under r. 58 of Or. XXI of the Code of 1908. The Opposite Party in execution of a decree for arrears of rent against their tenant attached the standing crops on 10 bighas of land. The attachment was effected on the 2nd December 1909. Eight days later, it was reported that the crops were fit to be reaped. The decree-holder was thereupon directed to deposit the costs of reaping. This order of the Court was carried out and the Nazir was directed to take steps to cut the crops. On the 14th December, before the crops had been reaped, the Petitioner before us preferred a claim to the crops standing upon a portion of the land about 5 bighas, I2.1/2 cottahs in area. He alleged that these crops had been grown by himself and not by the judgment-debtors of the decree-holders, and, consequently, could not be seized in execution of the decree. He, therefore, prayed that till his claim was adjudged, the reaping might be stayed. But his application was rejected. He subsequently prayed that after the crops were reaped, those claimed by him might be stored separately. This application was also refused. Subsequently, the crops were reaped and sold under the direction of the Court for 128 rupees. Meanwhile, nearly 100 rupees had been paid by the decree-holders as the costs of reaping the crops and for incidental purposes. The claim was then investigated and was allowed. The Court directed that as the attached property had been sold and converted into money, the claimant could obtain a proportionate share of the net value of the crops, that is, of the difference between the price realized at the sale and the harvesting costs. The result was that the claimant was allowed 15 rupees only. The claimant now invites us to modify this order on the ground that as his crops were unlawfully attached at the instance of the decree-holder, the burden of the harvesting costs cannot be charged to his account. The result was that the claimant was allowed 15 rupees only. The claimant now invites us to modify this order on the ground that as his crops were unlawfully attached at the instance of the decree-holder, the burden of the harvesting costs cannot be charged to his account. In answer to this contention, it has been argued on behalf of the decree-holders that the rule ought to be discharged on two grounds, first, because, at the time when the claim was actually investigated the attached property had ceased to exist and consequently the claim must be taken to have proved infructuous: and, secondly, because the claimant is at best entitled to the value of the standing crops, and there is no evidence to show what that value is or even what was the actual quantity of crops grown by the claimant. In our opinion, the objections urged on behalf of the decree-holders are unsubstantial, and the order made by the Court below for deduction of the harvesting charges from the amount realized at the sale and for payment of a share of the balance to the claimant cannot be supported. 2. In so far as the first objection taken on behalf of the decree- holders is concerned, it is clear that there is no substance in it. No doubt rr. 58 and 60 of Or. XXI of the Code of 1908 speak of claim to attached property and the release of properly from attachment, but they do not justify the conclusion that if moveable property of a perishable nature has been attached and a claim has been preferred thereto, the claim must prove nugatory if the decree-holder can only induce the Court to sell the property before the claim has been investigated. That the objection taken is entirely groundless becomes obvious from one illustration. If the claim had been preferred to the entire crops attached and before the determination of the claim the crops had been sold it could not have been reasonably contended that the claimant was not entitled to the value of the crops even though his claim was ultimately established to be well-founded. There is no reason why the same principle should not apply when the claim is preferred and established to a portion only of the moveable property attached. 3. There is no reason why the same principle should not apply when the claim is preferred and established to a portion only of the moveable property attached. 3. In so far as the second objection urged on behalf of the decree-holder is concerned, there is apparently more substance in it. It need not be disputed that the claimant is entitled to the value of the crops as standing crops and that there is no evidence of such value. It must not be overlooked, however, that the absence of such evidence is in a large measure due to the rejection of the application by the claimant to the Court below to keep separate the crops grown by him. Under these circumstances the Court below justly adopted the rule of proportion and assumed that the value of the standing crops was represented with fair accuracy by the price realized at the sale. We must take it, therefore, that the value of the crops grown by the claimant upon the 5 bighas, 121/2 cottahs of land was 72 rupees. 4. The only question which requires consideration is whether any portion of the harvesting costs could be charged on the claimant. In our opinion the order of the Court below is not well-founded on principle and cannot be supported. The decree-holders when they attached the crops of the claimant must be taken to have done so entirely at their own risk. When they proceeded to sell the crops in spite of the claim which had been preferred, they took the risk of loss likely to follow from the course they deliberately pursued. It is clear that their claim cannot be sustained under either sec. 69 or sec. 70 of the Indian Contract Act, not the former, because it cannot be urged that the whole of the amount sought to be charged was legally payable by the claimant, and not the latter, because the action of the decree-holders was clearly-unlawful. No doubt in view of the decision of the Judicial Committee in Dakhina Mohan v. Saroda Mohan ILR 21 Cal. 142 (1893), the rule laid down in Tiluck Chand v. Soudamini ILR 4 Cal. No doubt in view of the decision of the Judicial Committee in Dakhina Mohan v. Saroda Mohan ILR 21 Cal. 142 (1893), the rule laid down in Tiluck Chand v. Soudamini ILR 4 Cal. 566 (1878) that a person who is in wrongful possession is not entitled to recover sums paid on account of out-goings, although he may be able to use them for the purpose of reducing the mesne profits, cannot be treated as a proposition of law of universal application. [See also Abdul Wahid v. Shaluka Bibi ILR 21 Cal. 496 (1893), Goma Mahad v. Gokaldas ILR 3 Bom. 74 (1878)]. But even according to the exposition of the law on the subject by Lord Watson and Lord Macnaghten in Peruvian Guano Co. v. Dreyfus Brothers L.R. [1892] A. C. 166 (178, 186), a wrong-doer would not be entitled to anything more than expenses properly incurred, that is such expenses as the owner himself would have had to make if the wrong-doer had not made them [Doe v. Hare 2 C. & M. 145 (1833), Clarke v. Nicholson 1 C.M. and R. 724; 6 C. & P. 712 (1830)]. Now in the case before us, if the decree-holders had not unlawfully seized the crops, the claimant who had grown them, could have reaped them himself and incurred little or no expense. The effect of the unauthorised interference of the decree-holders has been that the value of the crops has been almost entirely swallowed up by the heavy harvesting expenses due to the employment of Court peons to do the work. Under these circumstances we cannot justly throw the burden of these extraordinary expenses upon the claimant. The result is that this rule is made absolute and the order of the lower Court is modified in so far as the claimant has been made liable for a proportionate share of the harvesting charges. The effect of our order will be that the decree of the Court below will be varied. The claimant will have a decree for 72 rupees with costs both here and in the lower Court. We assess the hearing fee in this Court at one gold mohur.