ALAPATI ANKAMMA Vs. PAVULURI BASAVA PUNNAYYA

JUDGEMENT

(1.) THE appellant held a decree passed on nth April, 1934, against respondent for payment of Rs. 615 -10 -8 due on a promissory note and Rs. 111 -3 -0 tor costs. In execution of another decree certain properties of the respondent were attached and sold, and out of the sale proceeds a sum of Rs. 788 -13 -2 was paid to the appellant on 30th August, 1941, by way of rateable distribution. In the meantime, however, the respondent applied on 30th June, 1941, for scaling down the appellant's decree in accordance with the provisions of the Madras Agriculturists Relief Act, 1938, and the decree was scaled down to Rs. 344 -1 -5 with interest at six per cent, per annum from 1st October, 1937 and costs as originally awarded. This was on 30th October 1941. The respondent thereupon applied for festitution of Rs. 233 -1 -3 being the sum recovered by the appellant in excess of the amount of the decree and as scaled down, and the Courts below have allowed the claim. Hence the appeal.

(2.) TWO contentions have been urged on,behalf of the appellant. It is argued, firstly, that Section 144 of the Code of Civil Procedure is not applicable to the case as the decree originally passed in favour of the appellant was not varied or reversed in appeal. This contention must fail as this Court has held that the section is applicable provided a decree is varied or reversed however the variance or reversal has been effected. Subbarayudu v. : (1916)30MLJ366 . Apart from this, Courts have frequently ordered restitution under their inherent powers even in cases not strictly falling within the terms of Section 144. See Palaniappa Chettiarv. Ramanathan Chettiar, (1934) 67 M.L.J. 49 :, I.L.R. 57 Mad. 849. It is next contended that Section 8(4) of the Madras Agriculturists' Relief Act entitles the appellant to retain the sum recovered in excess of the amount found payable to him under the Act. I am unable to agree. As the debts falling under Section 8 of the Act have to be scaled down as on the 1st October, 1937, Sub -section (4) must be taken to refer to sums which were duly collected from the debtor before that date but which turn out to be excessive as a result of applying the provisions of the Act, and the provisions cannot be understood as justifying the retention of sums recovered in excess of what was legally due at the time of the recovery. In other words, the sub -section does not affect rights to restitution in respect of collections wrongfully made. The position here was that, on 30th August, 1941, when the appellant recovered Rs. 788 -13 -2 by process of Court, the Act had come into force, and no more than the amount to which the decree was eventually scaled down was recoverable from the respondent under Section 7. of the Act which indeed laid a duty on creditors to scale down their debts in accordance with the provisions of the Act provided, of course, the debts were due from agriculturists (see Govindaswami Naicker v. : AIR1939Mad56 ). Furthermore, the respondent had actually applied for relief under the Act and the appellant had notice of the application which was pending disposal. In such circumstances, the recovery on 30th August, 1941, of more than what was eventually ascertained to be due was dearly wrongful and the respondent is entitled to claim restitution of the excess collected under the original decree which was subsequently varied by virtue of the provisions of the Act.