SABHAHIT, J. ( 1 ) THESE two appeals arise out of the order dt. 23-10-1979 passed by the second Additional Civil Judge. Bangalore City, in Miscellaneous case No. 17 of 1979, on his file,under s. 144 of the Code of Civil Procedure, allowing the petition for restoration and directing the respondents to put the petitioner in possession of the petition schedule premises symbolically without actually evicting respt.-2. The learned Civil Judge has further directed that Respt-2 shall pay the rent at Rs. 1,251 per month to the petitioner from the date on which the symbolic possession of the petition schedule premises is delivered to the petitioner. He has further directed the petitioner to recover mesne profits and damages at rs. 1,251 per month from Respt.-1 from 4-7-1977 till the date of symbolic delivery of possession of the petition schedule premises to the petitioner. Aggrieved by the said order, petitioner J. Ramakrishnappa has instituted Miscellaneous first Appeal No. 74 of 1980 before this Court where as M. M. Thimmiah, original Respt.-l, has instituted miscellaneous First Appeal No. 1502 of 1979 before this Court. ( 2 ) THE facts are either not disputed or are established by the evidence on record. They are these : m. M. Thimmaiah, original respt.-1, instituted H. R. C. No. 138 of 1960 against the original petitioner and some other persons for eviction on the ground of non-payment of rent. The petition was disposed of by consent. The petitioner was given 9 months time from the date of the order to pay the arrears of rent or to deposit them in Court. In the event of deposit of arrears of rent made by the petitioner, the eviction petit/on was ordered to stand dismissed and, in default, the petition was ordered to stand allowed. It appears that the arrears of rent was not paid and, hence, the landlord sought execution of the eviction of the present petitioner, according to him, in Execution Case No. 1021 of 1962. Exhibit R-2 shows the report of the Bailiff on 6-4-1964 along with the Mahazar drawn in Execution Case no. 1021 of 1962. It is clear from these that possession of the petition schedule premises was not delivered to the landlord as the premises were locked and there was resistence. Exhibit R. 4, however, shows that delivery of possession was taken by the landlord on 12-4-1964. 1021 of 1962. It is clear from these that possession of the petition schedule premises was not delivered to the landlord as the premises were locked and there was resistence. Exhibit R. 4, however, shows that delivery of possession was taken by the landlord on 12-4-1964. Thus, exhibits R. 5 and R. 6 make it clear that the landlord recovered possession of the petition schedule premises on 12-4-1964. It is the case of landlord M. M. Thimmaiah, however, that subsequently, the erstwhile tenant forcibly entered into possession on 15-6-1964 and M. M. Thimmaiah original Respt.-l in the petition, instituted Original Suit No 2194 of 1968 on the file of the First Munsiff, bangalore for recovery of possession. The Court, however, returned the plaint for presentation to competent court and, accordingly, the plaintiff took return of the plaint and presented it before the Court of the civil Judge wherein it was registered as Original Suit No 323 of 1975. The said suit, O. S. No. 323 of 1975, was decreed ex-parte against the present petitioner on 2-7-1976. The present petitioner, who was defendant in O. S. No. 323 of 1975, instituted a petition under Order IX rule 13 of the Code of Civil Procedure in Miscellaneous Case No. 313 of 1977 praying for setting aside the ex-parte decree dated 2-8-1976 passed in O S. No. 323 of 1975. That petition was dismissed by the learned Civil judge by his order dt. 18-9-1978. But it was allowed in appeal by this court in Miscellaneous First Appeal no. 1214 of 1978, as per the judgment dated 13-12-1978. In the meanwhile, however, the decree-holder M, M. Thimmaiah sought for possession of the petition schedule premises from the present petitioner in Execution Case No. 313 of 1977 and he obtained possession of the petition schedule premises on 4-7-1977. This Court in Miscellaneous First Appeal No. 1214 of 1978 set aside the ex-parte order by its judgment and order dated 13-12-1978. The plaintiff M. M. Thimmaiah had already taken possession of the petition schedule premises pursuant to the ex-parte decree in O. S. No. 323 of 1975 on 4-7-1977 itself. Having taken possession, it appears that he let out the petition schedule premises in favour of Respt.-2 in the petition, namely, Maruthi Glass and plywoods, by a registered lease deed dated 24-7-1977 on a monthly rent of rs. 1,251. He also received a sum of rs. Having taken possession, it appears that he let out the petition schedule premises in favour of Respt.-2 in the petition, namely, Maruthi Glass and plywoods, by a registered lease deed dated 24-7-1977 on a monthly rent of rs. 1,251. He also received a sum of rs. 15,000 as advance from the said tenant, namely, Maruthi Glass and plywoods. Shri J. Ramakrishnappa, thereafter, instituted the petition for restitution under S. 144 of the Code of Civil Procedure In Miscellaneous case No. 17 of 1979 before the learned civil Judge praying that he should be put back in possession of the petition schedule premises as the ex-parte decree was set aside by this court in Miscellaneous First Appeal no. 1214 of 1978 on 13-12-1978. The said petition was resisted by m. M. Thimmaiah, Respt-1 in the petition, on the ground that petitioner was a tres-passer. He had no right to be in possession and, as such on equitable grounds, he had no claim for restitution. The suit for possession was instituted against him on the ground that he was a tres-passer and it was pending trial in O. S. No. 373 of 1975. Hence, he prayed that the petition for restitution be dismissed. Respt-2 resisted the claim for restitution on the ground that he was a bona fide tenant inducted into the petition schedule premises when respt-1 in the petition was in legal possession of the premises and, as such his possession could not be disturbed in restitution proceeding under S. 144 of the Code of Civil Procedure. ( 3 ) THE learned Civil Judge raised the following points as arising for his consideration in the petition :- (1) Is petitioner entitled to restitution and therefore possession of the petition schedule premises ? (2) Is petitioner entitled to recover rent from the date of his dispossession till the date of restitution at the rate of Rs. 2,500 per month with interest thereon at 12% per annum ? (3) Is petitioner entitled to receive interest on Rs. 15,000 at the rate of 12% per annum from the res- pondent-1 ? (4) To what order the parties are entitled ? ( 4 ) DURING hearing, the petitioner reported that he had no oral evidence on his behalf. Respt-1 examined himself and closed his case. One witness was examined on behalf of Respt-2 and parties got marked some documents by consent. (4) To what order the parties are entitled ? ( 4 ) DURING hearing, the petitioner reported that he had no oral evidence on his behalf. Respt-1 examined himself and closed his case. One witness was examined on behalf of Respt-2 and parties got marked some documents by consent. ( 5 ) THE learned Civil Judge appreciating the evidence on record in the light of argument addressed before him, held under Point No. 1 that the petitioner was entitled to restitution. He however, held that since Respt-2 was inducted by Respt- 1 when he was in lawful possession and respondent was a bona fide tenant under Respt-1, the petitioner was not entitled for actual possession from Respt-2 and in that view, he directed, as stated above, that the petitioner was" entitled to symbolic possession without actually evicting Respt-2. He further directed that Respt-2 shall pay the rent to the petitioner from the date on which symbolic possession of the petitition schedule premises were delivered to the petitioner. He also directed that the petitioner shall recover mesne profits and also Rs, 15,000 from Respt-1 as he had received it from Respt-2. It is against this order, as stated above, that both the petitioner and respt-1 in the petition have instituted the above two appeals. ( 6 ) MISCELLANEOUS First Appeal no. 1502 of 1979 is instituted by M. M. Thimmaiah, Respt-1 in the petition. Learned Senior Counsel Shri H. B. Datar, appearing,for the appellant, strenuously urged before us that the Court below misunderstood the provisions of S. 144 of the Civil Procedure Code and mis-directed itself in giving several directions. According to him, the petitioner was not entitled to possession by way of restitution as he was trespasser and the doctrine of restitution was based on equitable considerations. It was a discretionary relief vested in the court. Alternatively, he submitted that the Court below was not justified in ordering recovery of mesne profits and interest. Hence, he submitted that the appeal should be allowed. ( 7 ) AS against that, learned counsel shri P. Viswanatha Shetty, appearing for the appellants in miscellaneous First Appeal No. 74 of 1980, strenuously urged before us that the Court below was not justified in ordering merely symbolic possession by way of restitution. According to him, Respt - 2 was not a bona fide tenant under resp.- 1 but they acted in collusion. According to him, Respt - 2 was not a bona fide tenant under resp.- 1 but they acted in collusion. The possession of Respt.-2 was not legal and, as such, he could not claim any equitable protection. Hence, he prayed that the appeal should be allowed and the appellants should be awarded actual possesion of the petition schedule premises in addition to other relief. He argued supporting the other reliefs awarded by the learned Civil Judge in favour of the petitioner. ( 8 ) THE points, therefore, that' arise for our consideration in these two apppeals are : (1) Whether original petitioner was entitled for restitution ? (2) If so, whether the Court below was justified in awarding merely symbolic possession and not physical possession of the petition schedule premises ? (3) What order ? ( 9 ) POINT NO. 1 : S. 144 of the code of Civil procedure speaks of restitution, It reads :" (I) Where and in so far as a 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 restitution 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 consequen- tial on such variation, reversal, setting aside or modification of the decree or order. By reading the Section, it becomes clear that among other things, the party seeking for restitution should be 'entitled to any benefit by way of restitution'. ( 10 ) SPEAKING on the aspect, the privy Council in the case, S. N. Benerji v. Kuchwar Lime and Stone co. By reading the Section, it becomes clear that among other things, the party seeking for restitution should be 'entitled to any benefit by way of restitution'. ( 10 ) SPEAKING on the aspect, the privy Council in the case, S. N. Benerji v. Kuchwar Lime and Stone co. , Ltd. , (A. I. R. 1941 P. C. 128), speaking through Lord Atkin, has ruled that where persons who have been dispossessed are found to be trespassers and the persons in subsequent possession are lawfully in possession by virtue of valid lease in their favour, it is not necessary for the ends of justice that the trespassers should be restored to possession though they may succeed in a suit for possession. This has been approved by the Supreme Court of India in the case, Lal Bhagawant Singh v. Sri kishen Das, (A. I. R. 1953 S. C. 136), wherein it is observed that under section 144 of the Code Civil procedure restitution would not come as a matter of course either on variation or on reversal of the decree but the person must also be entitled to any benefit by way of restitution and the same principle is reiterated in Muhadeo Prasad Shaw v. Calcutta Dyeing and Cleaning Co. , (A. I. R. 1961) Cal. 70 ). ( 11 ) THUS, it is clear that before a person seeks for destitution, he should be entitled for restitution. A trespasser cannot seek for restitution, against the person who has the present right to be in possession. ( 12 ) IN the instant case, admittedly a suit is pending at O. S. No. 373 of 1975 instituted for possession on the ground that J. Ramakrishnappa has been a tres-passer as he ousted the possession of the true owner forcibly. It would be hazardous to embark upon the decision on that point in the present proceeding. on scanty and skeleton evidence, thus prejudicing the rights of the parties in the suit. Hence, in our considered view, it would be proper to direct that this proceeding should be kept pending till the decision of that suit, awaiting the finding on the issue whether defendant in the suit has been a trespasser. on scanty and skeleton evidence, thus prejudicing the rights of the parties in the suit. Hence, in our considered view, it would be proper to direct that this proceeding should be kept pending till the decision of that suit, awaiting the finding on the issue whether defendant in the suit has been a trespasser. ( 13 ) POINT No. 2 Adverting to the second point, it is no doubt true that a person in bona fide possession through another, who was in legal possession, can protect his possession and there cannot be any restitution against him. ( 14 ) IN Binayak Swain v. Ramesh chandra Panigrahi (1966) S,c. D. Part I, vol. 6, page 538), Supreme Court has ruled :"there is a great distinction between the decreeholders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in that decree was a valid decree and when the the order for the sale was a valid order. I. L. R. 10 Allahabad 166 P. C. relied on. . . . " ( 15 ) IT is no doubt the case of the second respondent in the petition that he was inducted into posession by the first respondent and he took the premises on lease bona fide when the first respondent was in legal possession. These aspects have not been properly gone into by the court below. The court has not considered also whether the first respondent could induct the second respondent into possession without following the procedure contemplated in Rent Control Act. Hence, the finding given by the Court below that the petitioner is entitled for merely symbolic possession, cannot be sustained, The aspects concerned also will have be to gone into depending partly on the finding of the court in O, S. No. 373 of 1975 on the nature of possession by the original petitioner during ihe relevant time. ( 16 ) IN the result, therefore, the appeals are allowed and the order dt. ( 16 ) IN the result, therefore, the appeals are allowed and the order dt. 23-10-1979 passed by the Second additional District Judge, Bangalore, in Miscellaneous Case No. 17 of 1979, on his file, is hereby set aside the case is remitted back to the Chief judge, City Civil Court, Bangalore city, with a direction that suit O. S. No. 373 of 1975, and the said miscellaneous Case No. 17 of 1979 be heard together by the same Judge expeditiously and disposed of on merits. While dealing with Miscellaneous Case, Observations made above shall be duly borne in mind and the same be disposed of in accordance with law. No order as to costs of these appeals. --- *** --- .