Judgment :- 1. The question to be decided in these second appeals filed by the second defendant in O. S.736 of 1945 on the file of the Munsiff 's Court, Kozhikode, is the same and they are therefore disposed of by this common judgment. 2. O. S.736 of 1945 was filed by the plaintiff for redemption and recovery of possession of the plaint property with arrears of rent and future mesne profit on the foot of a kana-kychit of the year 1924. The suit was resisted by defendants 1 and 2 claiming fixity of tenure under the provisions of the Malabar Tenancy Act. The plaintiff claimed redemption and recovery on the ground that the kanartham exceeded 60% of the jenmam value of the plaint property and consequently the defendants were not entitled to claim fixity of tenure under the Malabar Tenancy Act. The learned Munsiff decreed the suit on 13 81946 holding that the kanartham exceeded 60% of the jenmi's right in the land. Ex. A-1 is the copy of the decree. Under the terms of Ex. A-1 after the set off allowed the plaintiff had to deposit Rs. 3825-5-6 before recovery of possession of the property. The decree-holder filed E. P. 1162 of 1946 seeking delivery of possession and deposited the sum of Rs. 3825-5-6. In the meanwhile defendants 1 and 2 preferred appeal against the decree for redemption and their attempt to get an order staying the execution of the decree was not successful. On 6 91946 the execution court ordered delivery of possession to the plaintiff and the property was delivered to her on 15 91946. During the pendency of the appeal filed by the defendants against the decree, the Malabar Tenancy (Amendment) Act of 1954 was passed. Though the appellate judge agreed with the trial court in holding that the kanartham exceeded 60% of the value of the Jenmi's interest in the land, in view of the provisions of the Malabar Tenancy (Amendment) Act of 1954 the suit was remanded to the trial court to consider whether defendants 1 and 2 were entitled to fixity of tenure as kudiyiruppu holders. It is represented by the advocate for the appellant that the suit has now been dismissed. 3. It is represented by the advocate for the appellant that the suit has now been dismissed. 3. But taking advantage of the reversal of the decree of the trial court defendants 1 and 2 filed E. A. 658 of 1956 on 20 71956 claiming redelivery of property delivered to the plaintiff in execution of the decree with mesne profits and damages by way of restitution. Mesne profits were claimed at the rate of Rs. 400/-per annum alleging that the plaintiff was realising rent for the plaint building at the rate of Rs. 45/-per mensem and at the rate of Rs. 50/-per annum from the trees in the property. Though the sum of Rs. 3825-5-6 deposited by the plaintiff was not withdrawn by the defendants from court, some of their creditors attached Rs. 633.83 out of the said amount and withdrew the same in satisfaction of their claims. 4. The plaintiff resisted the claim of defendants 1 and 2 for redelivery and for mesne profits and further contended that she is entitled to claim value for the improvements effected by her in the property. It was contended by the plaintiff that the original rent for the plaint building was only Rs.12/-per mensem and the increased rent of Rs. 45/-per month was the result of the improvements effected by her in the plaint property. The learned Munsiff allowed redelivery of property to defendants 1 and 2 on their depositing the sum of Rs. 633.83 withdrawn by the attaching creditors less Rs. 35/-awarded as damages to the defendants. Defendants 1 and 2 deposited the amount and then got redelivery of property on 30 91961. 5. Dissatisfied with the order of the learned Munsiff, both the plaintiff and defendants 1 and 2 filed appeals before the Subordinate Judge of Kozhikode, the plaintiff complaining against the direction for redelivery of property and defendants 1 and 2 complaining against the disallowance of the mesne profits claimed by them. The learned Subordinate Judge while confirming the decree for redelivery allowed defendants 1 and 2 to realise mesne profits at the rate of 9 months' rent every year at varying rates. The learned judge also directed defendants 1 and 2 to pay the plaintiff interest at the rate of 6% on Rs. 3825.34 from 3-9-1946 to 27-8-1956, interest at the rate of 6% on Rs. 633.83 from 27 81956 to 15 111960 and a sum of Rs. The learned judge also directed defendants 1 and 2 to pay the plaintiff interest at the rate of 6% on Rs. 3825.34 from 3-9-1946 to 27-8-1956, interest at the rate of 6% on Rs. 633.83 from 27 81956 to 15 111960 and a sum of Rs. 561.48 towards value of improvements. 6. In the second appeal the learned advocate for the appellant raised the following contentions: (1) The mesne profits awarded by the lower appellate court is very low. (2) Interest on mesne profits at the end of every year should have been awarded. (3) Interest should not have been awarded to the plaintiff on the sum of Rs. 3825-5-6 and on the sum of Rs. 633-83. (4) The value of improvements allowed to the plaintiff is excessive. 7. The plaintiffs did not dispute her liability for mesne profits. The learned Subordinate Judge allowed defendants 1 and 2 to get nine months' rent towards mesne profits every year and the rent for the building was fixed at Rs. 20/-per mensem for the period from 16 91946 to 3112 1952, at Rs. 25/- per mensem for the period from 111953 upto 16 111960 and thereafter at the rate of Rs. 45/- per mensem till the date of surrender. The learned Subordinate Judge allowed the plaintiff to deduct the municipal taxes and repair charges at the rate of 1/4th of the annual rent every year out of the amount decreed towards mesne profits. The plaintiff was directed to pay towards the income of the kuzhikoors in the property Rs. 14 0 every year from 16 91946 till the date of surrender and defendants 1 and 2 were awarded interest at the rate of 6% on the sum of Rs. 35/- allowed by way of damages from 141947 upto 25 61955. The main complaint of the learned advocate for the appellant was that the plaint building was let out by the plaintiff from the date of delivery to Khadi Vasthralaya on a monthly rent of Rs. 40/-to 50/-and mesne profits should have been awarded at this rate for the entire period. rw.1 is the plaintiff's husband. His evidence shows that immediately after the delivery of the property the plaintiff gave the house on rent to Khadi Vasthralaya on a rent of Rs. 40/-per month and the rent was raised in 1958 from Rs. 40/-to Rs. 40/-to 50/-and mesne profits should have been awarded at this rate for the entire period. rw.1 is the plaintiff's husband. His evidence shows that immediately after the delivery of the property the plaintiff gave the house on rent to Khadi Vasthralaya on a rent of Rs. 40/-per month and the rent was raised in 1958 from Rs. 40/-to Rs. 50/-and at the time when he gave the deposition in 1960 the building was fetching a rent of Rs. 50/-per month. The plaintiff was collecting in addition a sum of Rs. 5/-per month towards electric charges. It was also stated by rw.1 that the Khadi Vasthralaya agreed to pay rent at the rate of Rs. 40/-per month as the plaintiff had widened the lane in front of the house and also because of the improvements she had effected on the property. The learned Munsiff and the Subordinate Judge found that improvements to the value of Rs. 561.48 were made by the plaintiff in the plaint item even in 1946. The value of improvements is made up of Rs. 179-68 for repairs to the building, Rs. 40/-for constructing a fence, Rs. 90-69 for the construction of a car shed, Rs. 43.71 for constructing a gate and Rs. 207.42 for electric wiring. The investment by the plaintiff which could have appreciably increased the rental value was the construction of the car shed and the electric wiring. Repairs to the existing building and the construction of the fence do not constitute any permanent improvement. It is therefore not possible to agree with the conclusion of the learned Subordinate Judge that the monthly rent of Rs. 40/-paid by Khadi Vasthralaya was due mainly to the improvements of the plaintiff in the property. The fixation of Rs. 20/- during the period between 16-9-1946 and 31-12-1952 and thereafter at Rs. 25/- till 15-11-1960 was based on Ex. D-4 a certified extract of the property tax demand register. This shows that the tax assessed during the years 1944 to 1946 was on an annual rental value of Rs. 156/-. This would work out a monthly rent of about Rs. 15/-. From this fact alone the learned judge fixed the rent at Rs. 20/- per mensem and Rs. 25/-per mensem for the periods already referred to. If from 1946 the plaintiff was receiving the rent at the rate of Rs. 156/-. This would work out a monthly rent of about Rs. 15/-. From this fact alone the learned judge fixed the rent at Rs. 20/- per mensem and Rs. 25/-per mensem for the periods already referred to. If from 1946 the plaintiff was receiving the rent at the rate of Rs. 40/- per mensem since the investment even according to the plaintiff was only Rs. 561.48 it cannot be said that this building without the improvements effected by the plaintiff would have fetched only a rent of Rs. 20/- or 25/- per month. Further it is also not possible to appreciate the reason why the learned judge allowed only 9 months towards profits for one year. Out of this 9 months' rent allowed towards annual profits the learned judge allowed the plaintiff to deduct the municipal taxes and the repair charges at the rate of 1/4th of the annual rent. This obviously means that for the period from 16-9-1946 to 31-12-1952 the learned judge allowed mesne profits only at the rate of Rs. 120/- per annum and for the period from 1-1-1953 to 16-11-1960 he allowed mesne profits only at the rate of Rs. 150/-per annum and for the subsequent period at the rate of Rs. 270/-per annum. But in the earlier portion of the judgment the learned judge observed thus: "As the defendants would have had to pay the property tax if they were in possession of the annual repairs and the plaintiff had also paid the property tax and not costs of maintenance, 9 months' rent can be taken to be the annual net profits available from the building"' In view of this finding by the appellate court the direction that out of 8 months' rent allowed towards mesne profits per year the plaintiff would be entitled to deduct the municipal taxes and repair charges at the rate of 1/4th of the annual rent cannot stand. Most probably this direction was the result of an oversight in view of the finding of the learned judge extracted above. The plaintiff is therefore not entitled to deduct out of nine months' rent decreed towards mesne profits any amount paid towards municipal taxes and repairing charges. This direction contained in the judgment of the learned appellate judge has therefore to be vacated. 8. The plaintiff is therefore not entitled to deduct out of nine months' rent decreed towards mesne profits any amount paid towards municipal taxes and repairing charges. This direction contained in the judgment of the learned appellate judge has therefore to be vacated. 8. The next question to be considered is the quantum of rent on the basis of which mesne profits have to be fixed. As already mentioned by me the investment by the plaintiff towards permanent improvements was only Rs. 341.94 out of the sum of Rs. 561.48. The amenities made available to the existing building by the plaintiff was a car shed costing Rs. 90.69, a gate costing Rs. 43.71 apart from the sum of Rs. 207.42 spent for wiring the building. The rent which the building was fetching from 1946 to 1953 was at the rate of Rs. 40/- and thereafter at the rate of Rs. 50/-. Interest at 6% oil the sum of Rs. 341/- spent by the plaintiff for providing additional amenities will be about Rs. 21/-per annum. The plaintiff is entitled to deduct three months' rent towards taxes and expenses for repairs. The net profits from the plaint property will be 9 months' rent minus the sum of Rs. 31/- being the interest on the plaintiff's investment. Defendants 1 and 2 will be normally entitled to get mesne profits at the rate of Rs. 339/- per annum from 16 91946 to 3112 1953 and at the rate of Rs. 579/-per year from 111954. In this connection the question whether the plaintiff will be entitled to get interest on the sum of Rs. 3825.34 from 3 91946 to 27 81956 has to be taken up for consideration. It is admitted that until 27 81956 the date of service of notice of the redelivery application on the plaintiff this amount was not withdrawn by the defendants. The case of the learned advocate for the appellant was that he was not bound to withdraw the money and therefore the plaintiff took a risk in taking delivery of the property when an appeal against the decree was pending and the right of the defendants for mesne profits due to the reversal of the decree should not be affected by awarding interest on the amount deposited by the plaintiff. On the other hand, it was contended on behalf of the respondent that the filing of an appeal against the decree of the trial court is not a bar to the execution of the decree and since there was no impediment caused by the plaintiff to the defendants withdrawing the amount deposited by the plaintiff, in fixing the quantum of mesne profits the loss of interest to the plaintiff on the amount deposited by her in court should be taken into consideration. Otherwise the plaintiff will have to suffer because of the mistake of the trial court in passing a wrong decree which was reversed by the appellate court. 9. The use of the expression "damages, compensation or mesne profits" in S.144 of the Civil Procedure Code indicates that the possession obtained under an erroneous decree subsequently reversed is wrongful possession. In view of the reversal of the decree the judgment-debtor will not only be entitled to get back possession of the property taken delivery of from him but also for the mesne profits during the period he was out of possession. There was no contention before me by the respondent that his client will not be liable for mesne profits on the ground that after the remand no decree was passed against him. It is not therefore necessary for me to consider this aspect. Mesne profits is not what the person out of possession could have realised if he had not been dispossessed but the criterion is what the person in wrongful possession actually realised or could have realised with due diligence. The person in wrongful possession is not liable for the gross profits but for the net profits after making all legitimate deductions. The expression "mesne profits" in S.144 of the Civil Procedure Code has not a different meaning from that in S.2 clause (12) thereof. Subramanya Ayyar, J. observated in Dorasami Ayyar v. Appasami Ayyar ILR. The person in wrongful possession is not liable for the gross profits but for the net profits after making all legitimate deductions. The expression "mesne profits" in S.144 of the Civil Procedure Code has not a different meaning from that in S.2 clause (12) thereof. Subramanya Ayyar, J. observated in Dorasami Ayyar v. Appasami Ayyar ILR. 23 Madras 306: "The principle of the doctrine of restitution is that on the reversal of a judgment the law raises an obligation in the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost (Bank of the United States v. Bank of Washington) That obligation it is the duty of the Courts to enforce unless it is shown that restitution would be clearly contrary to the real justice of the case." 10. The above principle is stated by their Lordships of the Supreme Court in Bhagwant Singh v. Sri. Kishen Das AIR. 1953 SC. 136 when they observed at page 139 thus: "An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case." Restitution is therefore not merely a matter of making good to one party the loss suffered by him on account of the erroneous decree against him subsequently reversed or modified. In ordering restitution it is the duty of the court to see to the position of both parties and an order must be passed which is fair and equitable to both sides. In procceedings for restitution the court should pass an order consistent with justice and equity to both sides. It must therefore necessarily depend on the facts and circumstances of each case and cannot be reduced to the form of an inflexible rule that the court should have regard only to the detriment suffered by one party and not to the position of the other. It must therefore necessarily depend on the facts and circumstances of each case and cannot be reduced to the form of an inflexible rule that the court should have regard only to the detriment suffered by one party and not to the position of the other. It will be appropriate in this connection to rely on the following passage in page 544 of the Civil Procedure Code by Mulla (13th Edition) Vol. 1. "Where the mortgagors obtained a decree for redemption and having deposited the amount due under the decree into court recovered possession in execution, and on appeal, the suit was dismissed as time-barred, it was held that while the mortgagees were entitled by way of restitution to recover possession of the properties with mesne profits, the mortgagors were entitled as a matter of equity to credit for interest on the amount deposited by them into court and that it did not matter that the mortgagees had not withdrawn it." 11. In Redger v. The Comutir D' Esconnte De Paris, (1869-71) L.B.S P.C. 466, money was paid by the defendants under a decree to the plaintiffs. The decree was later reversed on appeal. The obligation of the plaintiffs to pay interest on the amount drawn by him under an erroneous decree was considered by Lord Cainus who observed at page 475: "It is contended, on the part of the Respondents here, that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury, will be done to the petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are delivered from the enjoyment of money. On the other hand, these fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. On the other hand, these fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the petitioners, and that the prefect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest, during the time that the money has been withheld." 12. The above shows that the duty of the court is to take care that the act of the court does not injure to any of the suitors and as far as possible the order of restitution passed is fairly and properly consequential on the reversal of the earlier judgment. In Wasiq Ali Khan v. Nand Kishore AIR. 1954 Allahabad 119 the facts were as follows. A suit for redemption was decreed on the plaintiff-mortgagors paying into court within a time fixed, Rs. 6221/-. The mortgagors deposited the amount under 0.34, R.7 in court. The amount remained in court as the defendant did not withdraw the same. The appeal filed by the defendants was allowed and the suit was dismissed. Thereafter the defendants applied under S.144 of the C.P.C. for restoration of possession and also claimed mesne profits for the period they were out of possession. The defendants contended that the defendants were not entitled to get mesne profits as they could have withdrawn the amount deposited by the plaintiffs in court as a condition for recovery of possession. In considering the tenability of the plea advanced by the plaintiff Malik C. J., observed thus: "Here the successful defendants are claiming mesne profits from the plaintiff for the period during which they had been deprived of possession of the property under the decree of the trial court. These mesne profits have to be worked out according to the principle of justice equity and good conscience, there being no other guide for the purpose. These mesne profits have to be worked out according to the principle of justice equity and good conscience, there being no other guide for the purpose. In working out the figures it appears that the loss suffered by the defendants would have been mitigated by them to some extent if they had withdrawn the amount which had been deposited and by reason of which deposit they had been deprived of possession of the property. It is not shown to us that the withdrawal of the amount would have in any manner prejudiced the defendants case. In the circumstances, it appears to us that they voluntarily suffered part of the damage by allowing the money to remain in deposit in Court when they could have easily withdrawn the amount. In calculating mesne profits, therefore, the courts can take that fact into consideration and allow them only such damage as they did not suffer voluntarily. In our view, therefore, from the sum of Rs. 1957 -12-5 interest at the rate of 6 per cent, the rate at which interest has been allowed to the defendant from the plaintiffs, should be allowed on the sum of Rs. 6221/- from the date of dispossession to the date of restitution of possession of the property to the defendants and if the amount exceeds the sum of Rs. 195712 5, the defendants will not be entitled to claim any mesne profits." 13. In the case before me the fact that the original judgment was reversed on the basis of new rights as Kudiyiruppa holders created in favour of defendants 1 and 2 on account of the subsequent legislation is also a matter to be taken into consideration in working out the equities between the parties. 14. Further the defendants are entitled to claim interest on the mesne profits decreed to them from the end of each year. Though the application for redelivery was filed by the defendants in 1956, the plaintiff was contesting their right to redelivery and they got recovery of possession only on 15 111960. 15. It will therefore be seen that defendants are entitled to claim interest on mesne profits decreed to them. The plaintiff deposited the money in court for taking delivery of property in pursuance to a decree which she was entitled to execute, even though there was an appeal against the decree. 15. It will therefore be seen that defendants are entitled to claim interest on mesne profits decreed to them. The plaintiff deposited the money in court for taking delivery of property in pursuance to a decree which she was entitled to execute, even though there was an appeal against the decree. The plaintiff was deprived of the use of that money during the period when it was in court. Though this was not due to any conduct on the part of the defendants, it was the result of an erroneous decree resulting from the act of the court. In moulding the reliefs arising under S.144, Civil Procedure Code or under the principles of general law relating to restitution, the loss occasioned to the plaintiff on account of the deprivation of interest on the amount in court may be taken into consideration in decreeing mesne profits against her. In my view while the defendants will be entitled to get interest at 4% per annum on the mesne profits allowed to them, the plaintiff will be entitled to interest at the same rate on the amount deposited by her. The second defendant did not dispute his liability for the plaintiff's claim for improvements but his contention was that he should have been made liable only for the value of permanent improvements in the property. 16. In the result, in substitution of the decree of the courts below I pass the following decree. (1) The plaintiff will pay the second defendant (the first defendant is dead and the second defendant recorded as the legal representative of the first defendant) towards mesne profits at the rate of Rs. 340/-per year from 6-9-1946 to 3112 1953 and at the rate of Rs. 379/- per year from 111954 till 30 91961 the date of redelivery. The plaintiff will be, liable to pay interest on the mesne profits accrued due from the end of every year at the rate of 4% per annum. From the amount allowed to the 2nd defendant towards mesne profits and interest, interest at 4% per annum on the sum of Rs. 3825 5 6 will be deducted at the end of every year from 3 91946 to 16 111950 the date on which the defendants deposited the sum of Rs. From the amount allowed to the 2nd defendant towards mesne profits and interest, interest at 4% per annum on the sum of Rs. 3825 5 6 will be deducted at the end of every year from 3 91946 to 16 111950 the date on which the defendants deposited the sum of Rs. 633.83 and the second defendant will be entitled to a decree for the balance only to be realised by way of mesne profits and interest every year. (2) The second defendant is liable to pay the plaintiff a sum of Rs. 341 towards value of improvements. (3) The plaintiff is liable for Rs. 35/- towards damages to the second defendant. No interest is payable on this amount. (4) The plaintiff will also be liable for mesne profits in respect of the kuzhikoors in the property at the rate of Rs. 14 0 per annum from 16-9-1946 to 30 91961. No interest is payable on this amount. (5) The amounts due to the plaintiff will be set off against the amounts due to the second defendant under this decree on 15 111960 and the balance will be recoverable by the second defendant from the plaintiff in execution. (6) The decree of the courts below allowing redelivery to the second defendant is not in any way interfered with and it is confirmed. 17. In the circumstances of this case and in the nature of the contentions raised, both parties will bear their costs in the restitution proceedings throughout. The second appeals are allowed to the extent indicated above.