BEERAVU Vs. KATHIYAMMA

JUDGEMENT

(1.) THIS revision arises from proceedings for restitution. Deceased first defendant is said to have deposited in court certain amounts when the suit was pending for trial. THIS is said to have been withdrawn by the deceased plaintiff. The suit was for recovery of possession with arrears of real. The defendant disputed the title of the plaintiff. Ultimately plaintiff's title was found against and the suit was dismissed. The matter was taken up in appeal and further appeal to this Court. In all these the plaintiff was unsuccessful. The plaintiff had claimed to be the lessor and had alleged that the first defendant was holding the property under a lease. Though the first defendant denied this he bad made certain deposits of rent to avail himself of the benefit of toe provisions of the Madras Act 17 of 1946 for stay of suit. A part of the amount deposited is seen to have been drawn by the deceased plaintiff during the trial. The High Court finally disposed of the suit on 1121966 and thereafter application for recovery of this amount from the legal representatives of the plaintiff was filed by the legal representatives of the first defendant. That application was so filed on 5 21969 within three years of the final decision by the High Court The legal representatives of the plaintiff, inter alia, contended that this application was barred by limitation. The court of first instance denied relief on the ground that the defendants could have sued the plaintiff for reimbursement of the amount and in the circumstances the Court will not grant restitution in exercise of the inherent powers. It also found that the petitioners have not proved that they have deposited the amounts shown in the petition and that the amount has been withdrawn by the plaintiff. The question of limitation was not considered by the court. The court below, before which an appeal was filed, found that, the party having invoked the inherent jurisdiction of the court, no appeal lay to that Court. The legal representatives of the deceased defendant, whom I shall hereinafter refer to as the petitioners, have filed this revision against the order passed by the Munsiff, as they accept the finding of the court below that the appeal to that court was not maintainable. The delay in filing the revision has already been excused.

(2.) THAT the motion made by the petitioners was not for restitution under S. 144 of the Code of Civil Procedure admits of no doubt. THAT section will have application only in cases where a decree or order is varied or reversed and as a consequence parties have to be restored to the position occupied by them earlier. It is not consequent to any decree or order that the present claim has arisen. It is not a case of the decree of the trial court or appellate court being varied or reversed. Deposit was made by the first defendant so that he may avail himself of the benefit of the stay of trial of the suit in terms of Madras Tenants and Ryots Protection Act 17 of 1946. The act provides for such deposit for payment to the landlord. The suit property originally belonged to one Syed Ammad who assigned his properties to his wife, the third defendant in the suit. In spite of such assignment in favour of his wife, he assigned the properties later to the first defendant who took it on the assumption that the assignment in favour of the wife did not come into operation. But on the basis of the assignment taken by the wife she assigned it to the plaintiff in the suit. He contended that the first defendant was holding under a lease from the third defendant and sued to recover. Though first defendant set up independent title in himself under the assignment from Syed ammad he possibly wanted to protect his interests even if such assignment was found to be bad and therefore possibly to avail of the benefit of the lease which had been set up by the plaintiff in the plaint he deposited two years' rent as provided under the Act. It was this that was drawn by the plaintiff during the pendency of the suit. The decree of the court did not make any provision for return of the amount so drawn and that is why the court had to be moved, after decree, for recovery of that amount from the legal representatives of the plaintiff. It is not contended now that S. 144 of the Code of Civil Procedure would apply in these circumstances. On the other hand, the petitioners are invoking the inherent powers of the court to grant restitution.

(3.) THE mere fact that there is power in the court does not necessarily mean that in every instance that power should be exercised. It is to be exercised only in rare and exceptional cases where the court finds that the established procedure may not be sufficient to give relief. Where the court thinks that some wrong has been done and that has to be corrected and the provisions in the Code may not meet the situation, inherent powers may be exercised. It cannot be used in such a manner as to render the provisions of the Code nugatory by applying it to all cases covered by the Code. That is why it is said that the exercise of the power is discretionary. THE court always considers whether, in the interests of justice, it is necessary to invoke its power. THE court must bear in mind that it is a power to be exercised only when there are compelling circumstances to do so.