RAMA WARRIER Vs. CHORONE AMMA

JUDGEMENT

(1.) This second appeal by the first defendant in O. S. 69 of 1944 arises out of restitution proceedings under S.144 of the Civil Procedure Code. 0. S. 69 of 1944 was a suit in ejectment by two plaintiffs, respondents 1 to 16 in this appeal being the legal representatives of the deceased first plaintiff, and respondent 17 being the second plaintiff, on the ground that the first defendant, a tenant, had committed default in the payment of rent. The latter's contention, that the suit was not maintainable in the absence of a notice to quit, was repelled. On the issue of default in the payment of rent, as furnishing the cause of action for eviction, the Trial Court relied upon the decree in O. S. 545 of 1942 for arrears of rent which had been obtained against the first defendant and which was still unsatisfied. In passing the decree in O. S. 69 of 1944 the Trial Court ordered as

(2.) It may at once be stated, that when the first defendant made the deposit in O. S. 545 of 1942 and prayed for full satisfaction being entered, he acted beyond the scope of the direction in the decree in O. S. 69 of 1944. It no doubt served his immediate purpose, which was probably to avert the sale. The direction to him in the decree in O. S. 69 of 1944 was only to make the deposit of the amount to the credit of the first plaintiff, which seems to suggest that the deposit was to be in that very decree. However that be, the first defendant accepted a risk in praying for satisfaction of that decree being entered: furthermore, he took no steps to prefer an appeal against the order which overruled his objections and allowed disbursement of the amount to the first plaintiff, especially when, as he now thinks, his right under Act XVII of 1946 was impaired. This is sufficient to negative his present claim.

(3.) On the question of restitution, I am inclined to take the view that the first defendant had suffered no prejudice by reason of the direction in the decree in O. S. 69 of 1944, for he was under a legal liability to discharge the decree in O. S. 545 of 1942. His present complaint is in effect that but for the direction in the decree, the deposit might not have been made immediately, and that he might have succeeded in averting the sale and delaying further execution till at last Act XVII of 1946 came in handy, under S.4 sub-section (3) of which, he would be entitled to stay execution by paying only a part of the decree amount which represented arrears of rent for two years, with the hope, not certainly unfulfilled, of ' similar legislations in the years to come. I do not think that chances such as these, constitute injury which S.144, C. P. C. is intended to remedy. The direction to the first defendant was only to pay off a subsisting liability under the decree in O. S. 545 of 1942. In T. S. Swaminatha Odayar v. Official Receiver of West Tanjore ( AIR 1957 SC 577 ) decided by the Supreme Court the facts were as follows. A final decree for partition provided for the payment of a sum of money to the appellant by the Official Receiver, in whom the interest of one of the sharers had vested on insolvency. The Official Receiver realised the assets partially and had a sum of over 6,000/- rupees in his hands. In the meantime, another creditor of the insolvent had taken out execution proceedings, and in a dispute between him and the appellant, the District Judge had decided, that under the terms of the decree the appellant was entitled to a charge on the estate of the insolvent and to a priority for payment. In accordance with this, the Official Receiver made payments to the appellant aggregating an amount of over 32, 000/- rupees. The defeated creditor appealed to the High Court, which decided against the appellant and remanded the case. The District Judge then held, that the High Court had only ruled that the appellant had no charge on the assets of the insolvent, but had not denied his right to priority and rejecting an application which had been made by the Official Receiver for the restitution of the amount paid to the appellant in pursuance of the order which had been set aside, allowed the appellant also to withdraw a further sum which had been deposited by the Official Receiver. On appeal, the High Court allowed the application for restitution. The matter was then taken to the Supreme Court and in allowing the appeal Sarkar J. observed thus: