S ALAGIRISWAMI NAIDU Vs. CHELLAYEE AMMAL

JUDGEMENT

(1.) This civil revision petition is filed against the order of the Additional Subordinate Judge, Madurai in C.M.A.477 of 1978 in which the claim for restitution by the civil revision petitioner against the respondent was negatived. The facts are briefly as follows: -

(2.) One Chellayee Ammal as Trustee and lessee of properties of Madhavanai Koil Trust, filed a suit for recovery of arrears of rent against S. Alagiriswami Naidu, the civil revision petitioner herein. The tenant, the civil revision petitioner herein, contested the claim on the ground that the said Chellayee Ammal, the respondent herein is not the Trustee and that the superstructures in the premises also do not belong to the Trust. The matter eventually came up before this court in S.A. No. 422 of 1969 and when the second appeal was pending the civil revision petitioner filed an application for stay of execution of the decree of the lower Court granted in favour of the respondent herein and as a condition precedent for stay, this court directed payment of Rs. 944.80 on or before 28-2-1970 and continue to pay a sum of Rs. 16 every month In all a sum of Rs. 2524.80 seems to have been paid by the civil revision petitioner herein during the pendency of the second appeal. Ultimately, the respondent herein lost the second appeal mainly on the ground that she has no locus standi to file a suit as a trustee. Consequent to the result of the second appeal the civil revision petitioner herein filed E.A. 350 of 1977 in O.S. 196 of 1964 under S. 144, C.P.C. directing the plaintiff, the respondent herein, to pay back the amount received by her in pursuance of the interim order of this court. To the above said restitution application the respondent herein filed a counter statement stating that the pre-existing liability of the civil revision petitioner to pay the rent of the Trust has not been extinguished by the dismissal of the wrongly framed suit. She also contended that since the civil revision petitioner is a tenant and he had paid the rent during the eviction proceedings, he is not entitled to get back the rent on the dismissal of the suit. The civil revision petitioner was depositing only what was legally due from him and he has not suffered any loss or injury and the petitioner is not entitled by way of restitution, the amount paid by him towards rent. The trial court after considering the contentions of both sides came to the conclusion that the respondent is not entitled to realise the amount of Rs. 2542.80 deposited by the civil revision petitioner and as she had the amount of Rs. 2542.80 which she was not legally entitled to, she is bound to pay back the said amount with interest at 6 per cent per annum and allowed the application. As against the said order, the respondent herein filed an appeal C.M.A. 477 of 1978 on the file of the Additional Subordinate Judge, Madurai. The learned Additional Subordinate Judge, Madurai, taking the view that inasmuch as the civil. revision petitioner admitted that he is the tenant to the vacant site and as such he is liable to pay the rent for it he cannot seek to recover the amount deposited by him as such rent allowed -the appeal and held that the civil revision petitioner is not entitled to an order of restitution in respect of the said amount. As against the said order of the Additional Subordinate Judge, this civil revision petition is filed.

(3.) According to S. 144, C.P.C. if a decree or order is varied or reversed in appeal and if in the meanwhile, the person in whose favour the decree is passed, collects any amount, then the party who has paid the amount is entitled to collect the same by way of restitution under a properly constituted application under S. 144, C.P.C. and as per Section 144 (2), C.P.C., no suit is maintainable for recovery of such amount. In this case, we have to see whether the civil revision petitioner who deposited the arrears of rent in pursuance of the order of this Court, is entitled to get back the amount from the respondent herein on the second appeal being allowed in favour of the civil revision petitioner. The contention of the respondent is that in any event, the fact that the civil revision petitioner is a tenant in the vacant site is not denied and the liability for payment of arrears of rent is also not disputed, the civil revision petitioner is not entitled to get back the amount. On the other hand, it is contended on behalf of the civil revision petitioner that as it has been found by the Court in the second appeal that the respondent herein is not the trustee and that she is not entitled to maintain the suit, the respondent is bound to pay back the amount It will have to be borne in mind that the fact that the respondent instituted the suit as a trustee is not denied by the civil revision petitioner. A suit on behalf of the trust can be filed even by a de facto trustee or a trustee de son tort. If the respondent had withdrawn the amount as a de facto trustee and used the same for the purpose of the Trust then it is only the Trust that can be made liable for the amount so collected. On the other hand, if the respondent herein had utilised the amount for her own purposes then she is bound to pay back the amount to the civil revision petitioner. In view of the fact that the suit itself is instituted on behalf of the trust this aspect will have to be gone into before the liability regarding restitution of the amount collected is decided. The fact that the arrears for the period claimed in the Plaint cannot also be claimed once again since the said claim is barred by limitation will also have to be borne in mind in deciding the issue. No doubt, there is no plea in the counter-statement of the respondent herein that the amount had been withdrawn and used for the purpose of Trust. But there is a plea that only the Trust can be made liable by way of restitution. Under the circumstances, to come to a correct conclusion certain further facts regarding utilisation of the amount will have to be ascertained before the liability to pay back the amount can be decided. Hence the order of the Additional Subordinate Judge, Madurai is set aside and the matter is remitted back to the District Munsif, Madurai Taluk, Madurai for fresh disposal after ascertaining whether the amount withdrawn by the respondent had been utilised for the purpose of the Trust or whether the same had been utilised for her own personal purposes. If it is found that the respondent had used the amount for her own personal purposes, then the court would be justified in passing an order of restitution directing payment of the amount to the civil revision petitioner. On the other hand, if the amount had been utilised for the purpose of the Trust, then it is the Trust that is bound to pay back the amount and the civil revision petitioner is given liberty to file another application by way of restitution against the Trust. As and when the said application is filed, the Trust will have all the defences open to it with reference to its claim for arrears of rent.