JUDGMENT - Tulpule R.D. J.:-This second appeal raises question as to the precise scope of the provisions of section 144 of the Code of Civil Procedure, as also the modality to enforce rights arising under orders of Courts, i.e. whether in the circumstances arising in this case rights accruing to the plaintiff-appellant must be enforced . by way of suit as has been held by the Courts below or can be realised by way of an execution application. 2. A long history of litigation precedes the present litigation. It appears that two suits were filed being Civil Suits Nos. 204-C and 205-C of 1941 against one Abdul Aziz. Those were suits for money and decrees were passed against Abdul Aziz. In execution of the decrees in those two suits the properties of Abdul Aziz, namely, fields S. Nos. 66 and 63 of village Ghorpad in tahsil and district Nagpur were attached and put up for sale and were purchased by Madan Manohar, appellant before me, on 8th of December 1944. It appears that the sale in execution of these decrees of the two properties was objected to by the widow of Abdul Aziz, Noorbi and others. That objection petition having failed and having been dismissed, a suit came to be filed under the provisions of Order XXI, rule 63, Civil Procedure Code, being Civil Suit No. 34-A of 1947. That suit was subsequently renumbered as Civil Suit No. 59 A of 1947. In that suit an application for injunction was filed to restrain the auction-purchaser Madan Manohar from recovering possession pursuant to the sale in his favour of the lands in question. An injunction was granted on condition of the respondents furnishing a security in a sum of Rs. 1,000/-that was for a period of one year on 2–5-1947. Accordingly on 17th of June 1947 one Mohmmed Allahbux surety furnished security in a sum of Rs. 1,000/-for the usufruct of the field for a period of one year. 3. The suit came to be dismissed on 21st October 1947. An appeal, however, came to be preferred from that decision to this Court which was numbered as First Appeal No. 24 of 1948. 1,000/-for the usufruct of the field for a period of one year. 3. The suit came to be dismissed on 21st October 1947. An appeal, however, came to be preferred from that decision to this Court which was numbered as First Appeal No. 24 of 1948. In the course of that appeal, a similar prayer was made by the appellants Noorbi and others and an order was obtained from this Court against Madan Manohar restraining him from “disturbing possession of the appellants till the decision of the appeal”. The appellants were also further directed to furnish security which security was ultimately furnished in sum of Rs, 3,000/-by one Mahomed Hussain. This amount of Rs. 3,000/- was computed at the rate of Rs. 1,000/-as mesne profits or damages for a period of 3 years. The appeal came to be finally dismissed on 11th February 1955. It appears thereafter that Madan Manohar recovered possession on the 15th April 1955. It is, however, not known as to whether Madan Manohar had filed an application for possession under Order XXI rule 95 of the Code of Civil Procedure even before all these proceedings, namely, Civil Suit No. 34-A of 1947 and First Appeal No. 24 of 1948 was filed or whether the application for possession was filed only subsequent to the dismissal of the first appeal No. 24 of 1948 on 11–2-1955. That, however, does not make any difference for the determination of the ultimate question involved and raised in this second appeal. 4. On the 22nd of August 1955 an application purporting to be an application for execution was filed which came to be dismissed for default on the 2nd of March 1959. Thereafter the present proceedings which were styled and described as Regular Dark hast No. 798 of 1961 was filed on the 23rd of October 1961. In that execution application Madan Manohar prayed for payment to him by way of mesne profits of a sum of Rs. 1,000/-from the first surety Allahbux and also from the judgment debtors namely, the heirs and legal representatives of Abdul Aziz, who were plaintiffs in Civil Suit No. 34-A of 1947 for the year for which Allahbux stood surety. He prayed to recover a sum of Rs. 3,000/-from the surety Mohmed Hussain, who stood surety in the course of First Appeal No. 24 of 1948 as also the judgment-debtors. He prayed to recover a sum of Rs. 3,000/-from the surety Mohmed Hussain, who stood surety in the course of First Appeal No. 24 of 1948 as also the judgment-debtors. He also prayed to recover a sum of Rs. 4,000/-from the judgment-debtors “plaintiffs in Civil Suit No. 34-A” for the period 3rd March 1951 to 11th February 1955. 5. Execution was allowed in favour of Madan Manohar against the sureties of the sum of Rs 1,000/-and Rs. 3,000/-by the trial Court. His prayer however and claim to recover Rs. 4,000/-from the judgment-debtors-plantiffs in Civil Suit No. 34-A of 1947 was rejected by the trial Court. That was on the ground that such a claim could not be recovered in the absence of a decree for such mesne profits and was not executable by way of an application. 6. Against this order passed in execution which operated as a decree, two appeals were filed, one filed by the sureties-judgment debtors and the other filed by Madan Manohar. Those were Civil Appeal Nos. 50 and 89 of 1967. The appeal filed by sureties-judgment-debtors namely, Civil Appeal No. 89 of 1967 came to be allowed, while appeal filed by Madan Manohar, Civil Appeal No. 50 of 1967 came to be dismissed. The appellate Court held so far as the question which is now relevant and surviving for the purpose of this appeal is that Madan Manohar's claim to recover Rs. 4,000/-against the plaintiff-judgment-debtors could not be recovered by way of execution application and can only be recovered by way of a suit. So far as the other part of the appellate order is concerned which remanded the matter to the trial Court, since it no more survives controversy, I do not propose to refer to it. In substance, therefore the appellate Court confirmed the order passed by the trial Court that there is no executable decree for mesne profits against the plaintiffs-judgment-debtors and, therefore, no execution application can lie and Madan Manohar's remedy to recover mesne profits for the remaining years, namely 1951 to 1955 lay by way of suit and not by way of execution application. It is this part of the order and judgment of the lower appellate Court confirming the view of the trial Court which is the subject of challenge of this second appeal. 7. It is this part of the order and judgment of the lower appellate Court confirming the view of the trial Court which is the subject of challenge of this second appeal. 7. Presumably the view taken by the Courts below was that since there was no decree in favour of Madan Manohar awarding to him possession of the lands in the suit and mesne profits, there could not be any execution application. It does not appear that the provisions of section 144 of the Code of Civil Procedure read with sections 151 and 47 of the said Code were at any time pressed into service or referred before the Courts below. No foundation or claim seems to have been made on the basis of any of these provisions and Madan Manohar seems to have proceeded to file this execution application as if it was an executable decree which he had in his favour. It is also possible to envisage that what Madan Manohar was seeking to execute was an order passed in First Appeal No. 24 of 1948 by this Court and an order passed in Regular Civil Suit No. 34-A of 1947 under which the appellants-plaintiffs were directed to furnish security for mesne profits by this Court and surety on account of Rs. 1,000 for the “usufruct” of the fields in case Madan Manohar succeeds by the trial Court respectively. In other words, the execution application filed on 23rd October 1961 is capable of being construed as an application to execute orders respectively passed as above on 2–5-1947 and 3–8-1948 by the Trial Court and the High Court respectively as above. Indeed, Mr. Mohta appearing for the appellants pressed that in the alternative, and if necessary, the execution application should be considered as one to execute these orders as contemplated by sec-tion 144 of the Code of Civil Procedure and the decision upon which he placed heavy reliance reported in (Ratansi v. Jaisingh)1, as confirmed by the Supreme Court in (Pushpawatibai v. Ratansi)2. 8. Mr. Mohta appearing for the appellant submitted firstly that the view of the Courts below that Madan Manohar must be driven to a suit and that there was no executable order or decree in his favour was based upon a misconception of law. 8. Mr. Mohta appearing for the appellant submitted firstly that the view of the Courts below that Madan Manohar must be driven to a suit and that there was no executable order or decree in his favour was based upon a misconception of law. He contended that the appellant was entitled to possession by virtue of the sale certificate issued in his favour and but for the injunction granted by the Court in the matter of Civil Suit No. 34 of 1947 (C. S. No. 59-A of 1947) on 2–5-1947 and again by the High Court in First Appeal No. 24 of 1948 on 3rd August 1948 Madan Manohar would have recovered the possession and enjoyed the usufruct of the property. He submitted that Madan Manohar was entitled to possession right after the sale was confirmed in his favour and in any event, before injunction was granted against him by the first Court on 2–5-1947 and later continued by the High Court on 3rd August 1948. As a consequence of these orders, Madan Manohar was deprived of possession to which he was entitled. But for these orders, he would have been able to recover the possession and enjoyed the income of which he was deprived. Since these orders were ultimately set aside, the benefit to which Madan Manohar was entitled and would have been entitled but for these orders, the plaintiffs in Civil Suit No. 34-A of1947 (59-A of 1947) and respondents in this appeal, who were responsible for procuring these orders, were bound to restore the same to him. Mr. Mohta contended that viewed in this light and angle the controversy would appear to be one fully covered by the provisions of section 47 read with section 144 of the Civil Procedure Code, if necessary read in the light of the provisions of section 151 of the said Code invoked the inherent jurisdiction of the Courts to do justice between the parties and to remove the wrong done to a party by order of the Court and restore to him the possession to which he was entitled. 9. Mr. Mohta further submitted that though the application filed on the 3rd October 1961 was in the form of an execution application as if to execute a decree, it should not have been so narrowly construed. The form does not determine the substance of the relief and claim. 9. Mr. Mohta further submitted that though the application filed on the 3rd October 1961 was in the form of an execution application as if to execute a decree, it should not have been so narrowly construed. The form does not determine the substance of the relief and claim. He contended that the copies of the orders which were passed in the matter of the suit and the appeal referred, namely, Civil Suit No. 34-A of 1947 and First Appeal No. 24 of 1948, were produced along with the execution application. Mr. Mohta conceded that there was no reference to section 141 nor to the principle underlying section 144 and the aid of section 151 was also not invoked. It was also conceded that the matter was treated as one arising under section 47 of the Code of Civil Procedure. But it was urged that the provisions of sec-tion 144 of the Civil Procedure Code are so wide and the definition of the word “decree” appearing in sub-section (2) of section 2 of the Civil Procedure Code covers a case arising under section 47 as well as under section 144. What Madan Manohar was claiming, he contended, was the restoration of a benefit to which he was entitled and would have accrued to him, but for the decree or orders passed by the Courts which were subsequently set aside and vacated. If not, the terms of section 144, it was submitted, the spirit of section 144 and the principle underlying therein, coupled with the provisions of section 151 of the inherent jurisdiction and powers of the Court to remedy a wrong and to do right to a person who has been affected by the orders of the Court is well established. For the same proposition he once again relied heavily upon the decision in Ratansi's case (supra) and the decisions cited therein. He also referred me to two other decisions of this Court, one of a Single Judge in Second Appeal No. 377 of 1967, decided on 12–1-1981 and another in Letters Patent Appeal No. 6 of 1969, decided on 5th February 1973 by the judgment of a Division Bench of this Court. On a proper view, therefore, of the applicable provisions of the Code of Civil Procedure and $he nature of the proceeding which was filed, Mr. On a proper view, therefore, of the applicable provisions of the Code of Civil Procedure and $he nature of the proceeding which was filed, Mr. Mohta submitted that Madan Manohar ought not to have been driven to a suit. The suit on the contrary, according to him, was not maintainable in view of section 47 and the only remedy which Madan Manohar had was to apply under section 144 read with section 47 of the Code of Civil Procedure. Mr. Mohta contended also further that as application under section 144 is nothing short and nothing also than application in execution is now well settled by the decision of the Supreme Court in (Mahjibai v. Manibhai)3. 10. For the respondents the principal submission which was made apart from a preliminary objection to which I shall presently come, was that the application did not relate to and relief of restitution but was filed as if to execute a decree. It was urged that there was no decree for execution. The only right which the plaintiff had was a right to take possession and take out 'proceedings for that purpose. Recovery of mesne profits or damages can only be awarded and recovered in cases contemplated under Order 20, rule 12, Civil Procedure Code. There was no suit for possession and there was no enquiry for mesne profits nor any direction awarding mesne profits. Since there was no such order, there could be no execution. 11. It was submitted on behalf of respondents that at no stage the provisions of section 144 read with section 47 and section 151 of the Civil Procedure Code were pressed into service. If there had been an application under section 144 properly framed and properly worded, then it would have been possible for the defendants to reply to it. Allowing this application to be converted or treated as one under section 144 now would cause prejudice to the respondents. The respondents would not be on merits able to urge anything so far as the mesne profits, their quantum and right to recover was concerned. 12. On merits it was also submitted that section 144 is not attracted in as much as it speaks of restitution or restoration. In order that there should be any restitution or restoration, the applicant or the person applying for restoration or restitution must have been deprived of any property. 12. On merits it was also submitted that section 144 is not attracted in as much as it speaks of restitution or restoration. In order that there should be any restitution or restoration, the applicant or the person applying for restoration or restitution must have been deprived of any property. There is, therefore, no case and no question of restitution or restoration. In support of this contention several judgment of various High Courts, namely, Patna, Madras and Calcutta as well as Allahabad were relied upon. It was pointed out that it was an admitted position that the applicant-appellant was not deprived of possession of lands in suit. Indeed, he was not in possession thereof at all. Therefore, the case of the appellant does not fall in terms under section 144 of the Civil Procedure Code. 13. A preliminary objection was raised saying that of the respondents respondent No. 3 Khudijabi was dead. Her heirs had not been brought on record and the entire appeal therefore abates. It was contended that if the appeal is heard against the rest of the respondents and results in a decree contrary to one that is already passed, it will result in two inconsistent decrees or orders. In such a case the appeal must be deemed to have been abated, the cause of action being against all the respondents, who were contended to be in possession of the property. An application had been filed by the appellant on 19th September 1981 praying that respondent No. 3's-name may be deleted from the respondents and the appeal proceeded against. It was contended that the cause of action survives against the rest of the respondents and the heirs if any left by Khudijabi were not known. At the hearing it was further submitted that Khudijabi was a formal party and she had no interest in the subject-matter of the suit. In any event, it was con-tended that the plaintiff would not be able to recover against Khudijabi, but if other respondents were also in possession along with her, he would be entitled to recover and the appeal does not abate. In support of the preliminary objection, reference was made to the decision reported in (State of Punjab v. Nathu Ram)4. 14. In support of the preliminary objection, reference was made to the decision reported in (State of Punjab v. Nathu Ram)4. 14. I had heard the respondent No. 1 on the preliminary objection and after hearing him at some length, it was indicated to him in the circum-stances that there was no merit in the preliminary objection and the appeal does not abate as a whole. Hearing therefore proceeded and it would be convenient before disposing of and setting out my reasons for holding as to why the preliminary objection cannot be sustained to deal with the merits of the matter in the first instance so that the controversy in this second appeal would become clear. That has of course relevance on the questions raised in the preliminary objection. 15. It is quite clear that what the appellant attempted was to file an execution application as if he were seeking execution of a decree in his favour granting him mesne profits for the period in question, namely, from 1947 to 1955. It is also clear that there was no decree as such in his favour as contemplated and as contended on behalf of the respondents. It is also apparent that no reference was made to section 144 in the Court below. The arguments now advanced under sections 144 and 151 have appeared for the first time at the appellate stage. 16. It would be firstly convenient to refer to Order 20, rule 12, Civil Procedure Code. That rule provides and permits “for passing of a decree for mesne profits” where a suit is for recovery of possession of immovable property to pass a decree for possession and for mesne-profits which have accrued prior to the institution of the suit or to direct an enquiry therefore and also direct an enquiry for mesne profits after the institution of the suit until either delivery of possession or until such period as is contemplated and referred to in sub-clause (c) of rule 12 (1) of Order XX. It may, however, clearly be possible for a Court even to direct future mesne profits at a particular rate where either the parties are argued as to what mesne profits for those years should be fixed or where the Court is of the opinion that future mesne profits would be accruing to the decree-holder-plaintiff in a certain measure. It may, however, clearly be possible for a Court even to direct future mesne profits at a particular rate where either the parties are argued as to what mesne profits for those years should be fixed or where the Court is of the opinion that future mesne profits would be accruing to the decree-holder-plaintiff in a certain measure. It is, however, common ground that there was no suit for possession in the present case, for any decree passed. But it would be wrong to say that mesne profits can be recovered only in cases arising under suits, all for possession of immovable property and mesne profits as contemplated under Order XX, Rule 12. There may be cases in which as I shall presently point out, where a person is entitled to recover the mesne profits under other provisions of the Civil Procedure Code such as under section 144. The term 'mesne profits' is a handy word and expression for describing relief to which a party would be entitled in certain circumstances even in the absence of a decree in his favour. To my mind, section 144 provides for one such kind of contingency and situation. 17. As pointed out above, the appellant was auction-purchaser, sale in whose favour was made on the 8th December 1944 The sale having been subsequently confirmed the title of the appellant auction-purchaser would relate back to the date of sale.* It would, therefore, follow that from the date of sale he would be entitled to the usufruct and the income of that property and will be also entitled to be put in possession thereof after the sale was confirmed. In the present case sale appears to have been confirmed in any event before 1947 in as much as a suit came to be filed under Order 21, rule 63 only in the year 1947. There is no dispute that the appellant was entitled to possession at least from the year 1947. If that was not so, no injunction would have been applied for in May 1947 and granted by the Court below. For the purpose of the instant case, therefore, we can safely assume that the plaintiff was entitled to possession also prior to May 1947 and, therefore, entitled to receive its income. 18. I may now refer to the provisions of section 144 of the Code of Civil Procedure. For the purpose of the instant case, therefore, we can safely assume that the plaintiff was entitled to possession also prior to May 1947 and, therefore, entitled to receive its income. 18. I may now refer to the provisions of section 144 of the Code of Civil Procedure. That section is in these terms:- “Section 144(1). Where and in so far as decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause such institution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified, and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which are properly consequential on such variation reversal, setting aside or modification of the decree or order………” 19. It will be seen from the wording of the section that an application can be filed by a party entitled to any benefit “where an order or decree is varied or reversed”. Now such benefit to which that person is entitled he may claim by way of restitution or otherwise and also the Court is empowered upon an application to cause “such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied” if the decree or order had not been so varied or reversed. In other words, where a decree or order is reversed or varied, then upon an application by a person entitled to any benefit which may have accrued to him and resulted to him, had such an order not been passed, which is subsequently varied can be restored or made over to that person. The object of section 144 is “to place the parties in the position which they have occupied.” 20. The object of section 144 is “to place the parties in the position which they have occupied.” 20. Applying these tests and applying the provisions of section 144 to the instant case, it is quite clear that an order of injunction passed on 2–5-1947 and that passed on 3rd August 1948 in First Appeal No. 24 of 1947 prevented the appellant from taking possession of the property. Had the order not been passed, the appellant could have been entitled to recover the possession. That he was entitled to recover possession, I have already held above, on those dates. The injunction, therefore, deprived him of the right to possession and the right to take immediate possession and enjoy the income and the fruits of the property. These orders of injunction dated 2nd May 1947 and 3rd August 1948 subsequently having been vacated and set aside or varied, the appellant is entitled to be placed in the same position which he would have occupied but for such order. It is common place that if there had been no order for injunction, the appellant would have not only got possession, but would have also got the income of the properties. Therefore, if restitution has to be made to him if he is Jo be placed in the same position which he would have enjoyed but for the orders of the Court prohibiting him from taking possession he would not only be entitled to be put in possession, but also to its income. He has been subsequently placed in possession and that question, therefore, does not arise before us. The only question is of the loss of income which resulted directly as a result of the orders passed preventing the appellant from taking possession of the lands in suit. It is this, therefore, which he is seeking to recover and claim. 21. I have already pointed out that an order passed under section 144 in view of the definition of the word “decree” in section 2 of the Code of Civil Procedure operates as a decree. An application under section 144any order resulting thereon, would therefore mean and would amount to a decree. 21. I have already pointed out that an order passed under section 144 in view of the definition of the word “decree” in section 2 of the Code of Civil Procedure operates as a decree. An application under section 144any order resulting thereon, would therefore mean and would amount to a decree. As to what is an application and whether an application under section 144 has to be in the nature of an application and an independent original proceeding, or can also be in the nature of execution application, is really a matter of technicality more of form than of substance. An application under section 144 has been held to be an application for execution of a decree. After a review and consideration of a number of conflicting decisions of various High Courts and taking into account the history of the legislation of section 144, the Supreme Court held in Mahjibai's case that an application for restitution under section 144, Civil Procedure Code is an application for execution of a decree. Therefore, it is an execution application. In any event, such an application would be for execution of an order. 22. It was then urged that the words “or an order” in section 144 did not appear in the section when these orders were passed in the years 1947 and 1948. It was pointed out that these words “or an order” were introduced by an amendment by the Amending Act, 1956 (Act No. 66 of 1956). It is true that this amendment was made to section 144 in the year 1956 and it came into force on 1–1-1957. But the question as to the applicability of section 144 has to be seen not with reference to the date when the order was passed, but with reference to the date on which the proceeding was commenced. Section 144 is obviously and clearly a procedural section. It would, therefore, clearly operate retrospectively unless it was intended not to so operate and expressly so stated. Where, therefore, the words appeared and were in the section at the time when the proceeding was commenced, in the absence of anything to show that the amendment was not to operate retrospectively and was not to apply to orders which were passed and which were reversed or varied prior to 1–1-1957, there is no reason to think that section 144 was not applicable. If the proceeding was in connection with an order and answers the description of subsequent variation or reversal, then even if it were passed prior to 1–1-1957, a person would be entitled to execute that order and seek relief under section 144. There is clearly no vested right in procedure. The words “or an order” were introduced as the amendment says and as the Bill says “to set at rest conflict of judicial decisions in that behalf”. Prior to the appearance of the words “or an order” in section 144, such orders were sustained on the ground that the Court had inherent powers to do so. In (Lakshminarayan v. Laduram)5 this Court had also held so. There are similar decisions of the Allahabad, Nagpur, Calcutta, Patna and Madras High Courts which have applied the provisions of section 144 even to cause of orders in the exercise of inherent powers on the analogy of a decree. The insertment of these words only indicates legislative acceptance of the correctness of that view. 23. It seems to me that there is clearly authority to hold that sec-tion 144 is available and can be invoked with the aid of section 151 even in cases of orders passed prior to 1–1-1957. Such an authority is to be found in the decision to which reference has already been made above in Ratansi v. Jaisingh. There also the order for security was passed in order to provide for loss which the decree-holder would suffer. In the report the orders passed by the Courts are reproduced and they were clearly to compensate for mesne profits. A similar contention as to the form and nature of proceedings was raised in that case. It was observed that “This view is exceedingly technical, in as much as the claim to these mesne profits was sufficiently indicated not only in the application for execution but also in a supplementary statement which was filed and no question of limitation arises in the case. If there was any need for correction, it lay in the absence of a stamp of Re. 1 which such petitions ought to have borne in those days. If there was any need for correction, it lay in the absence of a stamp of Re. 1 which such petitions ought to have borne in those days. That was a matter which could be easily rectified without the necessity of driving the decree-holders to a separate application or a suit as no conceivable advantage to the judgment debtors was thereby indicated.” It would thus be seen that even in such cases and orders in those cases were also passed on 21st of February 1947 and 28th of June 1940 i. e. much before 1–1-1957, it was held that application for execution of such orders to recover mesne profits lay and that it should be by way of execution application. 24. It is interesting to note that this view of the Division Bench of the Nagpur High Court in Ratansi's case (supra) found approval in the Supreme Court to which that very matter was taken. That decision is reported in Pushpawatibai v. Ratansi. There also the Supreme Court observed “The execution application no doubt purports to obtain execution of the decree passed in Appeal No. 54 of 1940 on December 10, 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 order 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.” We think that no observation more apt could have been easily found to answer the contention in the present case. This decision, therefore, in my opinion, is on all fours and consequently applies to the situation in the present case. As was done in Ratansi's case the application was for execution of an order of stay which subsequently came to be vacated, which awarded mesne profits by that very order itself. The application for execution clearly was for execution of that order and in substance therefore an application under section 144 of the Civil Procedure Code. 25. It was then contended that section 144 speaks of restitution or restoration. The application for execution clearly was for execution of that order and in substance therefore an application under section 144 of the Civil Procedure Code. 25. It was then contended that section 144 speaks of restitution or restoration. There is no question of restitution or restoration where the person is not deprived of any property and any possession. In support of this contention Mr. Ahmed relied upon several judgments of various High Courts, such as Calcutta, Patna, Madras and Allahabad. In (Baikuntha Nath Chattoraj v. Prosannamoyi Debi)6, it was held that since the properties were never in the possession of the appellant, they were not taken out of his possession and made over to the respondent under any decree or order of the Court, section 144 has no application. This Calcutta view had been followed in (Banarasi Prasad v. Hare Kishnu Radhe Kishun)7 where it was held that section 144 was applicable to cases “where a person obtained a decree, executes it and recovers some money or property from the judgment debtor and then the decree is reversed which necessitates restitution of the property or money which the judgment-debtor had to part with at the instance of the Court.” If there had been no such parting of possession, then there could be no question of restitution or restoration. 26. The Madras decision in (Lakshi Amma v. Thazhathitathil Krishna Kurup)8 also proceeds on similar lines and follows Baikuntha Nath's case Itwas held: “The word “restitution” which occurs in section 144 implies that a party who applied under section 144 should prove that he was in possession of something, the restitution or restoration of which he seeks.” In that case Anantkrishna Ayyar J. who delivered the judgment also further held that the words 'or otherwise' do not cover cases where there was no possession. He held: “It would appear that the words “or otherwise” were inserted to provide for cases where it is not possible to make restitution in the sense of restoring the very property that was lost to the petitioner and when the Court proceeds to do the next best thing.” He further held that it would not cover cases where possession was not lost. 27. All these cases excepting the decision in Hawaii Prasad v. Thakur Prasad Sahu9 were decided before the decision in Ratansi v. Jaisingh, or the decision in appeal before the Supreme Court against that decision. 27. All these cases excepting the decision in Hawaii Prasad v. Thakur Prasad Sahu9 were decided before the decision in Ratansi v. Jaisingh, or the decision in appeal before the Supreme Court against that decision. They proceeded also upon determination of the question as to the meaning of the words “restitution” or “restoration” and as in the Madras case the words “or otherwise”. The judgments, however, do not deal with the result and the consequence of the further expression “that restitution has to be made as will, so far as may be, place the parties in the position they would have occupied”, and what is the effect thereof. I am inclined to think that the power to cause restitution in the context of the words “to place the parties in the position which they would have occupied so far as may” are wider words and cover not only a case where a person whose possession has been taken away or is deprived of any property which was in his possession, but also cases where as a result of the order the party has been deprived of any benefit or position which he would have occupied. In the present case the position or benefit which the party would have occupied would have been the position of being in possession and therefore entitled to the in-come of the property. If that restoration or restitution has to be and to such an extent as far as is possible to place the parties in the same position which they would have occupied but for the order, it seems to me that it follows that it applies not only to a case where possession of moveable or immoveable property or moneys is actually lost, but also where there is entitlement to the property or possession thereof, but is prevented from enjoying it or being placed in possession thereof. The restoration or restitution in such a case is not only of the property of which possession is deprived or held back, but also a restoration of such benefit as would have flowed from the fact of possession which would have come had the order not been passed. It seems to me that the attention with very great respect in those cases was confirmed to only some parts of section 144 and does not give full effect to the latter part of the section. It seems to me that the attention with very great respect in those cases was confirmed to only some parts of section 144 and does not give full effect to the latter part of the section. In Bhagwatiprasad v. Thakur Prasad Sahu {supra) though a later case, there is no reference to the judgment either of the Supreme Court in Pushpawatibai's case (supra) or Ratansi's case (supra). On the facts which arose in that case, no reference to those cases was also necessary or apparently arose. There the pre-emptor had become entitled only to an equity of redemption and the” property was in the possession of the mortgagee only. At best, he would have been entitled to pay the mortgage money had redeemed the mortgage in part or full and there was no question of any other benefit to be restored to him. 28. The decision in Ratansi's case was clearly in a case where the person seeking restoration under section 144 was not actually deprived of any property. He was only entitled to property and was entitled to go into possession and enjoy its income. He was prevented from doing so by reason of the orders of stay which also directed surety to be given for any claim of mesne profits which may arise. As pointed out above, the facts which arose in that case are identical with the facts in the present case. Here also the appellant was entitled to the property and was not actually deprived of its possession. He was only prevented from entering into possession by reason of the order of the Court which was subsequently set aside and vacated. It seems to me, therefore, that it is not necessary for section 144 to be attracted that the person claiming relief under section 144 must be actually deprived of the property before he can invoke section 144. He can equally do so for claiming restoration and for being placed in the position to which he would have been, but for the orders. In that view of the matter, the appellant would be. entitled to claim and recover mesne profits. 29. From what I have discussed above. it would be clear that the entire suit or claim does not abate and cannot abate apart from the question that this was a matter in execution to which Order 20 rule, Civil Procedure Code does not apply. entitled to claim and recover mesne profits. 29. From what I have discussed above. it would be clear that the entire suit or claim does not abate and cannot abate apart from the question that this was a matter in execution to which Order 20 rule, Civil Procedure Code does not apply. On merits also the decree could be executed against persons who were actually in possession and persons found to be in possession or against whom the person concerned proceeds. It is, therefore a divisible decree. 30. In the view which I have taken, therefore, the appeal will have to be allowed and the appellant held entitled to succeed. However the appellant has claimed a specific sum of Rs. 4,000/-on the basis that the mesne profits would be Rs. 1,000/-per year for the period 1951. Those mesne profits have not been agreed and the mesne profits will be required to be determined. The appellant therefore cannot say without proof that the mesne profits every year would amount to a sum of Rs. 1000/-. As to what would be the mesne profits for each year which would naturally vary land being agriculture, will have to be determined by the Court below. Though the appeal, therefore, succeeds, the necessary result is that the matter will have to be remitted back to the trial Court for determining and finding as to what where the actual mesne profits actually received or would have been received by the respondents for those 4 years. Resultant upon that finding, there will be an order against the respondents for payment of that amount. 31. The appeal is allowed and the judgment and decrees passed by the Courts below set aside and reversed. In the circumstances, there will be no order as to costs of this appeal. Appeal allowed.