SRI CHOCKANATHASWAMI, PARTHIBANUR THROUGH ITS ARCHAKAR AND HEREDITARY TRUSTEE SUBRAMANIA BHATTAR Vs. ALLAPICHAI ROWTHER

JUDGEMENT

(1.) These two civil Miscellaneous second appeals arise under the following circumstances. Sri Chockanathaswami, Parthibanur, is the inamdar of certain lands of which Allapitchai Rowther, the respondent is the kudiwaramdar. The inamdar instituted two suits against the kudiwaramdar, one in O.S. No. 336 of 1961, on the file of the District Munsif, Manamadurai, and another in O.S. No. 89 of 1963, on the file of the same Court, for recovery of arrears of rent due for faslis 1371 and 1372 respectively. He also filed O.S. No. 215 of 1961, against the same kudiwaramdar, for recovery of arrears of rent in respect of three prior faslis, namely faslis 1368 to 1370. These suits were contested by the respondent, but on 26 July 1963, they were all decreed as prayed for with costs. The kudiwaramdar preferred appeals, A.S. Nos. 41 to 43 of 1966, on the file of the Subordinate Judge's Court, Sivaganga, against the judgments and decrees in the three suits, and, on 7th December 1966, the judgments of the trial Court were substantially confirmed, with certain modifications as to the quantum of the arrears payable by the kudiwaramdar. In between the date of the trial court's judgment and the date of the appellate court's judgment an event of great importance took place, namely the enactment of the Madras Minor loams (Abolition and Conversion into Ryotwari) Act, 1963, and under sub -S. (2) of S. 2 of the Act, the "appointed day" has been defined as the date appointed by the Government under sub -S.(4) of S. 1. In exercise of the powers conferred by the proviso to sub -S -(4) of S. 1 of the Act, the Governor of Madras appointed 15th February 1965 as the date on which the provisions of the said Act were to come into force. This Act granted very considerable concessions in favour of the kudiwaramdar. Sub -S(1) of S.41 provides :

(2.) The second argument of the learned counsel is that the suits in O.S. Nos. 336 of 1961 and 89 of 1963 were continued by the appeals preferred by the kudiwaramdar in the Subordinate Judge's Court and were concluded only on 7th December 1966, that is to say, after the appointed date and therefore, the kudiwaramdar is entitled to the concessions by this statute. I fail to see how the termination of the appeals after the appointed date can be used to reinforce the argument of learned counsel. The relevant thing to consider is the date on which the payment towards the decree was made. The payment was made out of the moneys deposited by the kudiwaramdar long before the appointed date and applied in partial discharge of the decrees. If those decrees had been set aside by the appellate court, it goes without saying that under S. 144 of the C.P.C. the inamdar would be liable in restitution. But what the appellate court did was to confirm the decrees with certain minor variations as to the quantum of the amount payable, and the quantum fixed by the appellate court itself was something which was higher than the amount which the kudiwaramdar had deposited into court and the inamdar withdrew in execution of his decrees. I am therefore unable to accept the argument that the inamdar is liable in law to repay the amount which he had realised before the appointed date in execution of a lawful decree passed by a competent court.

(3.) Consequently, I set aside the orders of the appellate court, and restore those of the court of first instance. Both the civil miscellaneous second appeals are allowed with costs. Leave granted.