ORDER P.V. DIXIT, J. 1. This is a Letters Patent appeal from a decision of Naik J. by which the learned Single Judge upheld an order of the Additional District Judge, Bilaspur, dismissing an application made by the appellants in circumstances to be presently stated, for recovery of mesne profits. 2. In execution of a money decree held by them against the judgment debtor-respondents, the appellants, purchased in a Court-auction some lands belonging to the judgment-debtors, and on 24th April 1956 they applied for confirmation of the sale. Before the confirmation of the sale the judgment-debtors deposited the decretal amount praying that the sale be not confirmed. The executing Court set aside the sale. The order of the executing Court setting aside the sale was, however, set aside by a learned Single Judge of this Court in Misc. (First) Appeal No. 17 of 1958. A Letters Patent Appeal was then preferred against the decision of the learned Single Judge which was ultimately dismissed and thereafter the sale was confirmed and delivery of possession of the lands to the decree holder-appellants was given. 3. After filing the Letters Patent Appeal, the respondents moved for staying the confirmation of the sale and delivery of possession of the lands to the appellants consequent to the decision of the learned Single Judge appealed against. On 15th January 1960 the Division Bench hearing the Letters Patent Appeal Smt. Supetkuwar vs. Kheduram, Letters Patent Appeal No. 57 of 1959, issued a notice of the stay application to the appellants who were the respondents to the Letters Patent Appeal and ordered:- "Stay in the meanwhile" On 15th March 1960 both the parties were heard on the stay application and the following order was passed by the Division Bench:- "15.3.1960:-Shri R.K. Pandey, Advocate for the appellants. Shri J.N. Sinha, Advocate, for the respondents. Stay is confirmed. The appellants shall, however furnish adequate security to the satisfaction of the trial Court for three years in the first instance and yearly thereafter. Mesne profits shall be determined by the trial Court after notice to the parties. Security shall be furnished within one month of its determination by the trial Court" On 25th October 1962 the appellants presented an application in the Court of the Additional District Judge, Bilaspur, for recovery of Rs. 10,000 as mesne profits of the lands from the respondents. Mesne profits shall be determined by the trial Court after notice to the parties. Security shall be furnished within one month of its determination by the trial Court" On 25th October 1962 the appellants presented an application in the Court of the Additional District Judge, Bilaspur, for recovery of Rs. 10,000 as mesne profits of the lands from the respondents. In that application, which was styled as one for restitution under sections 144 and 151 of the Code of Civil Procedure, the appellants stated that they were entitled to get possession of the lands they purchased from the date of the sale but that they were kept out of possession by various pleas and proceedings taken by the judgment-debtors and further:- "9. That the High Court had ordered the J. Ds. (N. As) to furnish surety for remaining decretal amount and the ensucing mesne profit claim and also directed the Lower Court to find out a tentative value of mesne profits for four years in the meantime till full claim is preferred. Accordingly this Court determined and arrived at a tentative value of Rs. 4800 for years (as shown in the accounts filed already) without prejudice to their rights to claim variation when the actual claim is advanced. Vide order sheet dated 16.2.1961 and also order to furnish security in a month. The J. Ds. (N. As) did not comply with order as noted in the order sheet dated 16.9.1961. 10. That the applicants are entitled to be restored to the position they would be if not improperly kept out of possession. The N. As. have gained the crops for the 5 years, i.e. 1957-58-59-60-61 which the applicants would have got. The applicants are entitled to the mense profits of these years." 4. The learned Additional District Judge dismissed the application for recovery of mesne profits holding that the application was untenable as no question of determining mesne profits by way of restitution arose. While affirming this order of the Additional District Judge Naik J. observed that as the mesne profits claimed by the appellants were not in consequence of any decree varied or reversed, there was no question of any "restitution" under section 144 or 151 of the Code of Civil Procedure. While affirming this order of the Additional District Judge Naik J. observed that as the mesne profits claimed by the appellants were not in consequence of any decree varied or reversed, there was no question of any "restitution" under section 144 or 151 of the Code of Civil Procedure. He further said:- "It is true that the order of the Division Bench directed the judgment debtors to furnish security for mesne profits in respect of their fields which had been attached and sold but which were yet in their possession because the auction sale had not been confirmed but the mere order directing them to furnish the security could not make them liable to the payment of the mense profits to the decree holders. All that the order meant to say was that if and when it was determined that they (the decree holders) were entitled to mesne profits, they may recover them from the surety, if necessary." 5. In our judgment, the real question that required to be considered in connection with the application presented by the appellant for recovery of mesne profits was not of restitution it was whether the stay order made on 15th January 1960 and confirmed on 15th March 1960 in the Letters Patent Appeal granted to the appellants a right to recover mesne profits from the respondents and whether that order of the High Court could be executed on the application made by the appellants. It is quite true that the principle of "restitution" applies when a decree or order is varied or reversed and the object of restitution is to "place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed." (See Jai Berham vs. Kedar Nath, AIR 1922 PC 269 and S.N. Banerjee vs. K.L. and S. Co. AIR 1941 PC 128. Here, there was no decree at all in favour of the appellants for delivery of possession of any lands and for mesne profits thereof. Consequently, the question of "restitution" as a result of variation or reversal of such a decree did not and could not arise. AIR 1941 PC 128. Here, there was no decree at all in favour of the appellants for delivery of possession of any lands and for mesne profits thereof. Consequently, the question of "restitution" as a result of variation or reversal of such a decree did not and could not arise. The application presented for recovery of meme profits by the appellants was no doubt styled as one for restitution under sections 144 and 151 of the Code of Civil Procedure but this "naming" of the petition could not clearly prevent the Court from making an order in favour of the appellants for recovery of mesne profits if the stay order passed in the Letters Patent Appeal granted them mesne profits and if that order could be executed by an application to the executing Court. The question, therefore, that arises for determination is as regards the construction and effect of the stay order. 6. Before considering this question it is necessary to refer to the decision in Ratansi vs. Jaisingh, ILR 1955 Nag. 425, which was affirmed in appeal by the Supreme Court in Pushpawatibai vs. Ratansi, 1963 JLJ 633 (SC) on which Shri Sinha, learned counsel for the appellants, based his argument that the appellants were claiming mesne profits not by way of restitution hut under the stay order passed by this Court in Shri Kamaksha Prasad Mishra vs. Smt. Parwatibai Letters Patent Appeal No. 57 of 1959, which gave to the appellants mesne profits and that, therefore, on the dismissal of that appeal an application for recovery of mesne profits being an application for execution of the stay order was maintainable and a separate suit for recovery of mesne profits was not necessary. 7. In Ratanst's Case (supra) a decree for delivery of possession of land was passed in favour of Ratansi and another and against Dinkarrao Rajurkar. Dinkarrao then preferred an appeal in the Nagpur High Court against the decree and pending the final disposal of the appeal he prayed that execution of the decree for possession should be stayed. 7. In Ratanst's Case (supra) a decree for delivery of possession of land was passed in favour of Ratansi and another and against Dinkarrao Rajurkar. Dinkarrao then preferred an appeal in the Nagpur High Court against the decree and pending the final disposal of the appeal he prayed that execution of the decree for possession should be stayed. This prayer was granted by the High Court by making an order on 28th June 1940 "provided that the appellant furnished adequate security for costs as well as mesne profits accruing from the date of the decree to the date of delivery of possession in case the appeal fails." Dinkarrao furnished security and execution of the decree was stayed. The appeal was dismissed by the High Court. Dinkarrao then preferred an appeal to the Privy Council which ultimately came to be heard by the Supreme Court and was dismissed. Thereafter, Ratansi and another made an application under Order 21, Rule 11 (2) of the Code of Civil Procedure for execution of the decree claiming delivery of possession of the property specified in the decree and mesne profits by way of rent collected by Dinkarrao from the date on which the High Court made the stay order till the date of delivery of possession of the land. During the pendency of the execution proceedings Dinkarrao died and his legal representatives then repeated the plea which had been made by Dinkarrao that the claim for mesne profits was incompetent. The executing Court upheld this plea and rejected the decree-holders claim for mesne profits. In Letters Patent Appeal (Ratansi vs. Jaisingh (supra) the Nagpur High Court held that the application for recovery of mesne profits granted by the High Court's stay order was maintainable and a separate suit was not necessary The decision of the Nagpur High Court was upheld by the Supreme Court in appeal Pushpawatibai vs. Ratansi (supra) preferred by the legal representatives of Dinkarrao. While dismissing that appeal the Supreme Court said:- The only contention which Mr. Aggarwala for the appellants has raised before us is that the procedure adopted by the respondents in claiming mesne profits is not warranted by law. While dismissing that appeal the Supreme Court said:- The only contention which Mr. Aggarwala for the appellants has raised before us is that the procedure adopted by the respondents in claiming mesne profits is not warranted by law. He concedes that the order passed by the High Court in granting stay in appeal required Dinkarrao to furnish security for mesne profits as well as costs, and that undoubtedly give the respondents a right to claim mesne profits and imposes a corresponding liability on the appellants to pay mesne profits from the date of the decree to the date of delivery of possession. The only argument is that this claim can be enforced either by a suit or by an application properly made to execute this order itself. He said that present application has been made to execute the decree passed in the appeal on the merits and since the said decree does not award mesne profits, it is not competent to the respondents to claim mesne profits by way of executing the said decree. In our opinion, this contention is purely technical and has been rightly rejected by the Letters Patent Bench. The execution application no doubt purports to obtain execution of the decree passed in appeal No. 54 of 1940 on 10 December, 1946 but the record shows that after objections were filed to the said application by the judgment-debtor Dinkarrao, the respondents offered an explanation and in doing so, they set out the older passed by the High Court in granting stay and made it clear that it is by virtue of the said order that they were making the claim for mesne profits. In substance, therefore, the respondents were claiming mesne profits by virtue of the order passed by the High Court in granting stay to Dinkarrao. The only point and the technical objection raised by the appellants is that a separate application for execution with adequate Court fees stamp should have been filed to execute the order passed by the High Court on the stay application as such and that since that prayer has been made in an application by which the decree itself is sought to be executed, the said prayer should be treated as incompetent. In our opinion, having regard to the explanation filed by the respondents, it is quite clear that the respondents were seeking to execute the decree so far as possession was concerned and were asking for mesne profits under the stay order granted by the High Court. The execution application filed by them can, therefore, be treated as a composite application asking for execution both of the decree and the stay order." 8. This decision of the Supreme Court is an authority for the proposition that where mesne profits are granted to a party by the High Court while granting a party's prayer in a pending appeal for stay of execution of the decree appealed against, then if the appeal is dismissed, an application under Order 21, Rule 11 (2) of the Code of Civil Procedure for recovery of the mesne profits is maintainable and a separate suit is not necessary. This view obviously proceeds on the reasoning that an order of the High Court granting mesne profits can be executed under sections 36 and 37 of the Code of Civil Procedure by an application under Order 21, Rule 11. 9. Now, in the present case, it is true that the stay order which the High Court made in Letters Patent Appeal No. 57 of 1959 on 15th January 1960 and confirmed on 15th March 1960 did not expressly say that the respondents shall pay mesne profits to the appellants. It merely stayed the execution of the decree adding that the respondents shall furnish "adequate security to the satisfaction of the trial Court for three years in the first instance and yearly thereafter mense profits shall be determined by the trial Court after notice to the parties. Security shall be furnished within one month of its determination by the trial Court." There can be no doubt that it was implicit in this order that the respondents shall pay to the appellants mesne profits from 15th January 1960 when the stay order was made and that they shall also furnish security for the payment of mesne profits within one month of determination of the mesne profits by the trial Court. Thus, the stay order was granted to the respondents from 15th January 1960 till they furnished security as directed by the order dated 15th March 1960 on the condition of their paying mesne profits to the appellants for the period. Thus, the stay order was granted to the respondents from 15th January 1960 till they furnished security as directed by the order dated 15th March 1960 on the condition of their paying mesne profits to the appellants for the period. Thereafter, the respondents were required to furnish security for mesne profits accruing to the appellants from 15th January 1960 for continuation of the stay order. The respondents, however, did not furnish security. But their failure to furnish security does not absolve them from any liability for payment of any mesne profits to the appellants under the stay order passed by the High Court from 15th January 1960 up to the date by which they were required to furnish security as directed by the High Court on 15th March 1960. It is not correct to say that under the stay order passed by the High Court, the liability for payment of mesne profits was saddled only on the surety that the respondents might have furnished. If they had furnished a security, then both the respondents and the surety would have been equally liable for payment of mesne profits. 10. On the decision of the Supreme Court in Pushpawatibai's Case (supra), the appellants were clearly entitled to recover mesne profits for the aforesaid period by filling the application which they did in the Court of the Additional District Judge., Bilaspur. The appellants cannot clearly recover mesne profits by way of an application for the period following the failure of the respondents to furnish security within one month of the determination of the mesne profits by the trial Court. When the respondents failed to furnish security, the High Court stay order no longer remained operative. The appellants could have either moved the High Court to say that the stay order was no longer operative or they should have straight away initiated proceedings in the lower Court for execution of the decree appealed against in the High Court and for confirmation of the sale. If they failed to do so and waited till the disposal of Letters Patent Appeal No. 57 of 1959, then they cannot say that the sale could not be confirmed and they could not obtain delivery of possession of the property because of the stay order passed by the High Court. 11. If they failed to do so and waited till the disposal of Letters Patent Appeal No. 57 of 1959, then they cannot say that the sale could not be confirmed and they could not obtain delivery of possession of the property because of the stay order passed by the High Court. 11. For these reasons, our conclusion is that the application filed by the appellants on 25th October 1962 in the Court of the Additional District Judge, Bilaspur, for recovery of mesne profits is maintainable so far as the recovery of mesne profits for the period from 15th January 1960 till the point of time by which the respondents were required to furnish security as directed by the High Court by its order dated 15th March 1960 in Letters Patent Appeal No. 57 of 1959. The result is that this appeal is allowed with costs and the decisions of the learned single Judge and the Additional District Judge, Bilaspur, are set aside and the executing Court is directed to proceed with the appellants' application for recovery of mesne profits in the light of this decision. Counsel's fee is fixed at Rs. 75.