ELIAKUTTY Vs. PUDUKKAD PUBLIC BANK

JUDGEMENT

(1.) This appeal has exposed a strange process by which a plaintiff could forcibly realise his claim from a defendant before the suit came up for trial. The manoeuvre did not stop there. After that recovery the plaintiff collected the suit amount from another defendant in the suit and agreed to the dismissal of the suit as against the first mentioned defendant and resisted successfully a claim for refund of what has been admittedly taken twice over on the ground that the section of the Code is misquoted.

(2.) The facts are thus: One K. R. Anthony issued a postdated cheque to P. K. Anthony on the Cochin Nayar Bank Ltd., Pudukad branch. P. K. Anthony endorsed it in favour of the respondent Bank and got it discounted by Nanappan Anthony who was then manager of the Bank. The cheque was dishonoured by the drawee Bank on presentation at maturity. The respondent Bank then filed O. S. No. 38 of 1122 on the file of the District Court, Anjikaimal (Now Ernakulam), against K. R. Anthony, P. K. Anthony and Nanappan Anthony for damages suffered by it on account of the above transaction, and attached before judgment a money decree that had been obtained by Nanappan Anthony in O. S. No. 615 of 1121 on the file of the Munsiff, Irinjalakuda. Pursuing the attachment, the respondent got itself impleaded as the attaching decree holder in O. S. No. 615, executed that decree, collected its proceeds on November, 24, 1952, and credited the amount in what was styled a 'suspense account' in the name of Nanappan Anthony. By the time O. S. 38 came up for trial, P. K. Anthony had died and his estate had been adjudicated insolvent by the District Court, Anjikaimal, and vested in the Official Receiver. On March 11, 1955 the respondent Bank compromised the suit (O. S. 38) with K. R. Anthony and filed an affidavit (Ext. P2 here) agreeing to the dismissal of the suit as against Nanappan Anthony and his estate and claiming a decree for the suit amount against K. R. Anthony and the estate of P. K. Anthony; and that was accepted by the court and made the decree in the suit on March 18, 1955. On November 30, 1955, the respondent applied to the Insolvency Court for payment out of the estate of P. K. Anthony and the entire decree amount in O. S. 38 was deposited by the Official Receiver and paid to the respondent.

(3.) The appellants 1 to 10 are the widow and children of Nanappan Anthony, and the 11th appellant is their assignee. On November 1, 1957, they filed a joint application in O. S. 615 under S.144 CPC. for "restitution" of the amount "wrongfully realised" by the respondent Bank. The Bank opposed the application as unsustainable in law and barred by limitation.