Judgement Consolidated Appeals from a judgment and decree of the High Court (February 25, 1910) partly affirming and partly reversing four decrees of the Subordinate Judge of Monghyr. The appeals were in respect of decrees upon applications for mesne profits in respect of property which under decrees made by the Subordinate Judge, the High Court, and the Privy Council in pre-emption proceedings had alternately been in the possession of the preemptors and the original purchaser. The facts are fully stated in the judgment of their Lordships. The Subordinate Judge held that the above named respondents, representing the original purchaser, Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri 215 were entitled to mesne profits for the period between July 19, 1900, and July 20, 1904, during which they were out of possession, and that the pre- emptors (the above named appellants) were not entitled to mesne profits for the subsequent period, since they were only entitled to, possession upon paying the full price at which the Privy Council held that they were entitled to purchase. The High Court (Brett and Sharfuddin JJ.) reversed the decrees in favour of the original purchaser and affirmed those disallowing mesne profits to the pre-emptors. The learned judges thought that s. 144 of the Code of Civil Procedure, 1908, could not be applied, as neither the possession of the pre-emptors from 1900 to 1904 nor that of the original purchaser from 1904 to 1909 was wholly wrongful. They pointed out that the original purchaser had lost the interest for nine years upon the Rs.44,850 which he had paid as the price of the property, but had had possession for five years ; the pre-emptors had lost the interest for nine years upon Rs.37,000, but had had possession for four years. They thought that it would be fair and equitable to treat the profits realized by possession as compensation for the loss of interest in each case, and they accordingly dismissed the claims of both parties. They further observed that substantially the same result would follow under s. 144, as the right to mesne profits as restitution under that section would be subject in each case to a liability for interest upon the outstanding amounts. 1916. Nov. 10. De Gruyther, K.C., and Dube, for the appellants (pre-emptors). They further observed that substantially the same result would follow under s. 144, as the right to mesne profits as restitution under that section would be subject in each case to a liability for interest upon the outstanding amounts. 1916. Nov. 10. De Gruyther, K.C., and Dube, for the appellants (pre-emptors). The pre-emptors are entitled to mesne profits for the period between 1904 and 1909 during which they were out of possession owing to the erroneous decree of the High Court. They obtained a title upon paying the amount decreed by the Subordinate Judge, and their right of pre-emption was affirmed by the Order in Council. In any case they were not wrongfully in possession between 1900 and 1904 and cannot be made to account for the mesne profits for that period. The pre-emptors have lost the interest upon Rs.37,000 which they paid under the first order ; it is just and equitable that, having established their right of pre-emption, they should have the benefit of the mesne profits. [Gradys Hedaya, p. 550, and the Code of Civil Procedure, 1908, Order xx., r. 14, were referred to.] Dunne; for the respondents. Under s. 214 the pre-emptors were only entitled to possession from the date when they paid the price finally decreed by the Order in Council Deokinandan v. Sri Ram. (( 1889) I. L. R. 12 Allah. 234.) The right to mesne profits is a question of law depending entirely upon the right to possession. The High Court was wrong in dealing with the matter upon equitable principles. . The decision and reasons of the Subordinate Judge were correct. De Gruyther, K.C. replied. Dec. 11. The judgment of their Lordships was delivered by LORD BUCK MASTER L.C. The question in these appeals affects the right to mesne profits of certain lands which by virtue of three different sets of judgments—first, two decrees of the Subordinate Judge on March 31, 1900 ; secondly, two decrees of the High Court at Calcutta on January 20, 1904 ; and thirdly, an Order in Council on January 25, 1908—have been alternately in the possession of Deonandan Prashad Singh and Baijnath Ram Goenka or their predecessors in title (hereafter, for convenience, called the appellants), Ramdhari Chowdhri and others or their predecessors in title (here after called the respondents), and, finally, of the appellants again. The explanation of this changing occupation is to be found in the nature of the proceedings in which those orders were made. On June 30, 1898, two suits were brought by the two predecessors of the appellants, each claiming a right to pre-empt a half-share in certain property known as taluqa Rasulpur Bhatowni, which on Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri 216 December 17, 1897, one Anupbati Koeri sold to Nirbhoy Chowdhri. The sale was alleged by the purchaser to have been made for Rs.44,850, and this amount was stated as the consideration in the deed of sale. The plaintiffs right to pre-empt does not seem to have been questioned ; the only matter in dispute was whether they had made, in accordance with the rules of the Mahomedan law to which the right is subject, the " demands " which are a condition precedent to the exercise of the rights of pre-emption. The plaintiffs alleged they had duly performed the necessary formalities and also that they had offered to pay the full purchase price. The purchaser, however, declined to recognize their rights, and it accordingly became necessary to institute proceedings. Unfortunately in those proceedings the plaintiffs challenged the reality of the purchase price named in the deed, and alleged that the real purchase price was Rs.37,OOO, and not Rs.44,850. The defendant denied the right of pre-emption and asserted that the full consideration was the true consideration for sale. The plaintiffs succeeded on both their contentions, and, by the decrees of March 31, 1900, to which reference has been made, the Subordinate Judge ordered that each of the plaintiffs should, within one month from the date thereof, deposit in the Court Rs. 18,500—half of the Rs.37,000 the price of the property claimed—and then be awarded possession of the half-share of the property claimed by right of pre-emption. The money was duly paid by both the plaintiffs, and possession of the estate was delivered to them on July 19, 1900. The judgment of the High Court reversed this judgment and set aside these decrees, declaring that there was no right of pre-emption, and that the full consideration for the sale was Rs. 44,500. Possession of the estate was accordingly redelivered to the original purchaser on July 20, 1904. The judgment of the High Court reversed this judgment and set aside these decrees, declaring that there was no right of pre-emption, and that the full consideration for the sale was Rs. 44,500. Possession of the estate was accordingly redelivered to the original purchaser on July 20, 1904. The Order of the Privy Council on appeal from the High Court was dated January 25, 1908; this declared that the right of pre-emption existed, and that the purchase price was that stated in the deed ; accordingly the decrees of the High Court were discharged, and it was further ordered that the decrees of the Subordinate Judge should " . . . .be varied by calculating the price of pre-emption on the sum of Rs.44,850 instead of on the sum of Rs.37,000 and by ordering the amounts in question to be deposited by the respective appellants in the Court of the said Subordinate Judge within such times as the said High Court or the Court of the said Subordinate Judge may determine; that, subject to these variations and the payment to the appellants of additional costs (if any) properly incurred by them, the said decrees of the Court of the said Subordinate Judge be and the same are hereby remitted to the said High Court in order that the necessary steps may be taken for the disposal thereof on the above footing." It appears that during all this time the two sums of Rs. 18,500 had remained in Court, uninvested as the appellants suggest, though their Lordships cannot but think it unlikely that so large a sum should be left idle during the whole long and indeterminate time of Indian litigation. Accordingly the plaintiffs were only bound to find the balance of Rs.7850, and this having been done, the plaintiffs were restored to possession on January 19, 1909. In working out the Order in Council a question has naturally arisen as to the right to mesne profits between July 19, 1900, and January 19, 1909. The respondents, as representing the original purchaser, claim to be entitled to the whole mesne profits between these dates upon the ground that the appellants are only in possession under the Order in Council. The respondents, as representing the original purchaser, claim to be entitled to the whole mesne profits between these dates upon the ground that the appellants are only in possession under the Order in Council. The appellants, on the other hand, assert their right because they urge they were rightly in possession under the original decrees, and that that possession was wrongfully taken away by the order of the High Court. The High Court, from whom the present appeal has been brought, have settled the matter by giving mesne profits during the one period to the appellants, and during the other period to the respondents. But though this order might be a fair way of adjusting the rival claims of the parties were they uncontrolled by statute, their Lordships are unable to find that they are free to deal with it in this manner. Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri 217 A person claiming an order of pre-emption cannot be regarded in the same light as an ordinary purchaser of an estate. His right is, when an estate has been sold, to acquire the property from the purchaser at the price paid. If the necessary formalities are observed, and the purchaser assents to the claim, possession is given by mutual consent and no difficulty arises ; but if the claim be disputed and suit must be brought, the rights of the parties are regulated by the Code of Civil Procedure, which in this respect embodies the principle of the Mahomedan law. Sect. If the necessary formalities are observed, and the purchaser assents to the claim, possession is given by mutual consent and no difficulty arises ; but if the claim be disputed and suit must be brought, the rights of the parties are regulated by the Code of Civil Procedure, which in this respect embodies the principle of the Mahomedan law. Sect. 214 of the Code of Civil Procedure, 1882, is in these words " When the suit is to enforce a right of pre-emption in respect of a particular sale of property, and the Court finds for the plaintiff, if the amount of purchase-money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase-money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid the suit shall stand dismissed with costs." It therefore follows that where a suit is brought it is on payment of the purchase-money on the specified date that the plaintiff obtains possession of the property, and until that time the original purchaser retains possession and is entitled to the rents and profits. This was so held in the case of Deokinandan v. Sri Ram (I. L. R. 12 Allah. 234.), and there Mahmud J., whose authority is well recognized by all, stated that it was only when the terms of the decree were fulfilled and enforced that the persons having the right of pre-emption become owners of the property, that such ownership did not vest from the date of sale, notwithstanding success in the suit, and that the actual substitution of the owner of the pre-empted property dates with possession under the decree. Now in the present case the decrees under which possession was given of the pre-empted property are the decrees of the Subordinate Judge, not, indeed, those of March 31, 1900, but those decrees as varied by the Order in Council of January 25, 1908, for at that date the original decrees of the Subordinate Judge had been set aside, and were only restored upon the terms mentioned in the judgment of the Privy Council. So varied, they provided that upon the deposit by each plaintiff of Rs.22,425—half of the Rs.44,850—he should then be awarded possession. So varied, they provided that upon the deposit by each plaintiff of Rs.22,425—half of the Rs.44,850—he should then be awarded possession. Until that deposit was made possession could not be taken. If it had not been made, possession could never have been assumed at all, and, in their Lordships opinion, it follows that the plaintiffs only obtained possession within the meaning of the Code in pursuance of that Order, that is to say, on January 19, 1909. Their Lordships fear that this opinion, to which they are compelled by the terms of the Code, may involve some hardship upon the plaintiffs ; but it must be remembered that this is due to two matters, one of which was wholly and the other to some extent under the plaintiffs control. The first and the fundamental error was in challenging the consideration for the sale. Apart from this, their possession would have been lawful throughout, and the Order in Council would merely have confirmed the decrees of the Subordinate Judge and prevented the decree of the High Court from having any effect. But, apart from this, their loss might have been materially lessened had they proceeded with diligence in their appeal from the judgment of the High Court. That judgment was given on January 21, 1904, and it was not till four years afterwards that the matter came before the Judicial Committee for decision, though there need be no delay in the hearing of appeals when once they are entered here. The date when proceedings were commenced was June 30, 1898, and it is not until nearly ten years afterwards that the final decree is obtained. Their Lordships realize and desire to make full allowance for the difficulties due to translation of documents, printing, and preparation of the record, and all the circumstances attaching to habits and ideas different from their own ; but delay in litigation means to every one concerned, in whatever country he may be, needless expense, anxiety, and disappointment, and to the poor and honest suitor it is an oppression hard to be borne. In the result, therefore, the appellants fail and the respondents succeed. Their Lordships will therefore Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri 218 humbly advise His Majesty that the two decrees of the High Court, both dated February 25, 1910, made in appeals Nos. In the result, therefore, the appellants fail and the respondents succeed. Their Lordships will therefore Law. Rep. 44 Ind. App. 80 ( 1916- 1917) Deonandan Prashad Singh V. Ramdhari C howdhri 218 humbly advise His Majesty that the two decrees of the High Court, both dated February 25, 1910, made in appeals Nos. 365 and 366 of 1909, should be affirmed, and that the two decrees of the High Court, both dated February 25, 1910, made in appeals Nos. 537 and 538 of 1909, should be set aside except as to costs, and that the decrees of the Court of the Subordinate Judge dated August 28, 1909, should be restored except as to costs. It follows that the appellants appeals should be dismissed and the respondents cross-appeals allowed. As regards costs, the High Court ordered each party to bear their own costs in both the Indian Courts. This part of the High Courts order will not be disturbed, and there will be no costs in these appeals.