SAYYED USMAN SAHEB Vs. VEGISENA SIVARAMARAJU

JUDGEMENT

(1.) C. M. S. A. No. 37 of 1946, C. R. P. No. 822 of 1945 and C. R. P. No. 149 of 1946 all arose oat of C. M. P. No. 846 of 1944 in O. P. No. 57 of 1927 on the file of the District Munsif's Court, Amalapuram, and were all dismissed by Govindarajachari J. who, however, granted leave to appeal in C. M. S. A. No. 37 of 1946 from which this Letters Patent appeal has been filed.

(2.) The facts are these. On llth October 1922 Viswanatharaju created a simple mortgage over his lands in favour of two brothers, Venkataraju and Sooraparaju for Rs. 2500/- repayable in eight annual instalments with interest at RS. 1-0-6 per mensem. Sometime later, the hypotheca was sold to Sayeed Oosman, the original appellant in the Letters Patent appeal since dead, and now represented by his legal representatives. Sayeed Oosman paid several instalments of principal and interest during the years 1925 to 1927 and deposited in the District Munsif's Court of Amalapuram a sum of Rs. 997/- being the balance of the mortgage money due according to him, and also filed O. P. No. 57 of 1927 dated 8th December 1927 under Section 83, T. P. Act praying for necessary action to be taken under that section. Suraparaju, one of the mortgagees, did not appear on notice or express his willingness to receive the money deposited, with the result that O. P. No. 57 of 1927 was dismissed and the sum of Rs. 997/- deposited into Court continued to remain there as the property of Sayeed Oosman. One Akkubhotlu obtained a simple money decree in O. S. No. 171 of 1929 against Venkataraju, one of the two mortgagees and attached a sum of Rs. 498-8 0 being a moiety of the money lying in Court deposit in O. P. No. 57 of 1927, as the money of his judgment-debtor. Sayeed Oosman was not given notice of the attachment, and Venbataraja's pleader stated that he had no objection to it. On 6th September 1929, a sum of Rs. 498 8-0 out of the amount in Court deposit was paid to Akkhu-bhotlu in part satisfaction of his decree. Mote than 12 years after this payment and after the death of Akkubhotlu and Venkataraju, Sayeed Oosman filed I. A. No. 1140 of 1941 on 13tb November 1941 for the return of the Bum of Rs. 997/- deposited by him in Court in O. P. No. 57 of 1927. Half of the amount had already been paid by the Court to Akkubhotlu the been holder in O. S. No. 171 of 1929 and the balance of BS. 498-8-0 alone was ordered to be paid to Sayeed Oosman. On 19th August 1944, Sayeed Oosman filed C. M. P. No. 846 of 1944 which has given rise to this Letters Patent appeal fez a direction that the sum of Rs. 498-8 0 which had been paid out by the Court to the decree-holder in O. S. No. 171 of 1929 should be ordered to be repaid to him either by the legal representatives of Akkubhotlu who were impleoded as respondents 4 to 10 in C. M. P. No 846 of 1944 or by the legal representatives of Venkataraju who were impleaded as respondents 1 and 2 and Sooraparaju who was originally impleaded as respondent 3 but subsequently given up. To complete the narration of facts, it may be stated that Venkataraju's sons instituted O. S. No. 223 of 1942 on the file of the District Munsif's Court, Amalapuram, claiming a sum of Rs. 410/- as due for the principal and interest of the last instalment of the mortgage dated llth October 1922 and alloging inter aha that the sum of Rs. 498-8-0 which had been paid out of the Court deposit to Akkubhoiln, the credit of Venkataraju was liable to be adjusted to the prior instalments of the mortgage debt leaving the last instalment of the principal and interest alone outstanding. The mortgage suit was decreed.

(3.) The District Munsif of Amalapuram held that the sum of Rs. 997/- deposited in O. P. No. 57 of 1927 remained the property of Sayeed Oosman, that neither Yenkataraju nor his creditor Akkubhotlu had any right to proceed against the fund, that the payment of a moiety of the said sum to Akkubhotlu was made under a mistake of the Court and that it was the duty of the Court in the exercise of its inherent powers to direct the representatives of Akkubhotlu to repay the amount erroneously paid over to him by the Court. Against this order of the District Munsif Akkubhotlu's legal representatives, respondents 4 to 10 in the lower Court, preferred C. R. P. No. 822 of 1945 to this Court and an appeal A. S. No. 39 of 1945 to the Court of the Subordinate Judge of Amalapuram, which reversed the decision of the District Munsif and dismissed C. M. P. No. 846 of 1944 on the ground that the remedy of Sayeed Oosman, if any, was only by way of a suit and not by an application under S. 144 or S. 151, Civil P. C, By a supplemental judgment, the Subordinate Judge overruled the plea that the order of the District Munsif purporting to be passed in the exercise of his inherent power under S. 151, Civil P. C., was not appealable. Against the judgment of the Subordinate Judge, Sayeed Oosman preferred C. M. S. A. No. 37 of 1946 to this Court and a C. R. P. No. 149 of 1946 in the alternative. Govindarajachari J. who heard the appeal and the two civil revision petitions aforesaid held that an appeal lay to the lower appellate Court and a second appeal to this Court from the order in C. M. P. No. 846 of 1944 relying on certain decisions which will presently be referred to. On the merits he held in deference to authority and despite his own inclination to the contrary, that the inherent power of the Court to order, restitution could not be exercised in the circumstances of the case. He dismissed C. R. p. No. 149 of 1946 preferred by Sayeed Oosman and C. R. P. No. 822 of 1945 preferred by the representatives of Akkubhotlu in view of his decision that the order of the first Court was appealable. He gave leave to file an appeal under Clause 15, Letters Patent against his judgment in C. M. S. A. No. 37 of 1946.