N.S. RAMALINGAM Vs. THE MAHATMA GANDHI TUBERCULOSIS SANATORIUM, SENGIPATTI, BY ITS CHAIRMAN, THE COLLECTOR OF THANJAVUR

JUDGEMENT

(1.) The Mahatma Gandhi Tuberculosis Sanatorium, Sengipatti by its Chairman, the Collector of Thanjavur, filed a suit O. S. No. 43 of 1962, against one Ramalingam, in the Sub Court, Nagapattinam, for mesne profits for Rs. 9000/ - and odd and obtained a decree. Ramalingam appealed to this court against the decree. At the hearing of the appeal, Ramalingam apparently admitted liability to the extent of Rs. 2000/ - and for proportionate costs and interest. On this basis, this court, while disposing of the appeal, modified the decree of the trial court and reduced the amount of the decree to Rs. 3485/ -. It would appear that by the time this court modified the decree and reduced the decree amount, the judgment debtor Ramalingam had made payments of sums of money to the plaintiff Sanatorium towards the decree amounting in all to Rs. 11,785 -94. Since, however, this court had reduced the decree to Rs. 3485, the judgment debtor moved the trial court for restitution under S. 144, C. P. C.

(2.) Meanwhile, the plaintiff Sanatorium had made restitution by repaying sums amounting to Rs. 6132 - 84, leaving a balance of Rs. 2114 - 03. In filing his restitution application, before the trial court, the judgment debtor asked for restitution in the sum of Rs. 2114 - 03, and also direct execution as against the properties of the plaintiff Sanatorium, for recovery of that amount. Notice of this restitution application, E. P. 25 of 1973, was given to the plaintiff Sanatorium. It filed a counter affidavit in the said E. P. contending that the amount for which the execution petition was filed, was based on a wrong calculation. It was also submitted on behalf of the plaintiff Sanatorium, that only a sum of Rs. 694 -32 was payable to the judgment debtor, and this carried no interest.

(3.) The learned Subordinate Judge, Nagapattinam, allowed the restitution. However, since the properties as against which execution was asked for, were not situate within the territorial jurisdiction of his court, he rejected that part of the relief asked for in the execution petition. Subsequently, Ramalingam applied for transfer of the order in restitution for execution to the Subordinate Court, West Thanjavur, where the E. P. was numbered as E. P. No. 150 of 1974. The prayer in the said E.P. was for attachment of the movable properties belonging to the plaintiff Sanatorium, for recovery of the sum of Rs. 2195 -78. This petition for execution was again opposed by the plaintiff Sanatorium, on the ground that the judgment debtor was not entitled to restitution, and, in any case, was not entitled to payment of Rs. 2114 -03 as claimed.