KANNAPPA MUDALIAR DIED Vs. AYYASWAMI GOUNDER DIED

JUDGEMENT

(1.) THE first appellant filed the above appeal aggrieved against the order of the lower appellate court, (Sub-Judge, Tindivanam) in c. M. A. S. No. 10 of 1983. THE first respondent along with others filed O. S. No. 165 of 1965 praying for a decree for declaration of title and recovery of possession of the seven items of properties. THE lower court in its judgment dated 8. 3. 1966 and the plaintiffs filed Cross Objections aggrieved against the said judgment. THE lower appellate court dismissed the said appeal and allowed the Cross Objections. Aggrieved against the same, further appeal in S. A. No. 734 of 1969 was filed by the first appellant herein. This Court modified the decree granting relief to the plaintiff/first respondents herein only with respect to item No. 1, one acre and 10 cents in Item No. 2 and the well in Item No. 4. Pending the second appeal, the High Court, in C. M. P. No. 7521 of 1969 directed the first defendant/1 st appellant herein to pay some amount as a condition for granting stay. Pursuant to the said direction a sum of Rs. 5,000 under Exs. A-5 and a-6 was deposited.

(2.) THE 1st defendant/1 st appellant filed an application in E. A. No. 382 of 1980 on the file of the District Munsif Court , Tindivanam, under Section 144 of the code for recovery of the said amount from the first plaintiff. In the petition, it is stated that if the respondent fails to pay the amount it has to be recovered by making civil arrest, under Order 21, Rule 37 of the Code. THE application was resisted by the respondent. THE lower court allowed that application. Aggrieved against the same, the first plaintiff filed C. M. A. No. 10 of 1983 on the file of the Sub-Court, Tindivanam. THE Sub-Court allowed the appeal on the ground that the appellant should not have filed one application for two reliefs, namely under Section 144 and under Order 21, Rule 37 of the code and that the first appellant herein should have taken separate proceedings to recover the amount and not by filing a petition under Section 144 of the code as the payment of mesne profit was not the issue in the earlier proceedings. Aggrieved against the same, the 1st appellant have filed the above appeal. After his death other appellants have been brought on record.

(3.) THE word'restitution'is used in Section 144 of the code amounts to restitution to a party, on the variation or reversal of a decree what has been lost to him in execution of the decree or directly in consequence of the decree, thought not through proceedings under it. THE right to claim restitution is founded on the reversal of a decree in appeal and the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what h e has lost. This right arises automatically on the reversal or modification and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. Dealing with the question on first principles it has been pointed out by their Lordships of the Privy Council in Jai Berham v. Kedar Nath, AIR 1922 PC 269 that' ; it is the duty of the court under Section 144 of the Civil P. C. to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said Section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved"