N. SURYANARYANA MURTHY Vs. N. SATYANRAYANA MURTHI

JUDGEMENT

(1.) The appellant is the defendant in the suit O. S. No. 81 of 1952 which was filed by his brother for partition. The suit was dismissed by the trial court in respect of a major portion of the property in dispute. In respect of one house which was one of the items forming the subject matter of the suit, the trial court held that it was the self acquired property of the defendant. As against the said decree, the plaintiff filed an appeal to this court A.S. 631 of 1954 and applied for stay of further proceedings. The defendant was taking proceedings to obtain possession of the said house. This court in C.M.P. Nos. 7689/54 and 8979/54 directed the plaintiff to deposit a sum of Rs. 300.00 which he deposited and which the defendant withdrew. In the High Court, the parties arrived at a compromise. The relevant terms of the compromise are as follows:-

(2.) In the decree which was passed in terms of the compromise, there was a slight variation with regard to clause (3) of the compromise, It was recorded in the following words in the decree :

(3.) The plaintiff now claims that, inasmuch as the decree of the trial court is varied, by virtue of the compromise decree passed on 24-6-1960 in terms of the compromise in A. S. No. 631/54, he became entitled to the house, he is also entitled to the restitution of Rs. 300.00 which he deposited as per the directions of this Court. The trial court negatived his contention holding that section 144 C. P. C. has no application to compromise decree. On appeal, the learned District Judge held that restitution can be ordered in respect of a compromise decree as well following a decision in 42 Punjab Law Reports 429. For this proposition, one need not have gone to the decision of the Punjab High Court when it has been authoritatively laid down by the Madras High Court in Sudarsana Rao Vs. Gopal Rao, 1933 M.W.N. 631 and Sevatha Goundan Vs. Pappammal AIR 1935 Mad. 476 that section 144 requires only a variation or reversal of the decree of the Court of first instance and nothing more and that it does not say that a decree that has been varied must be one passed after contest; it applies also to a reversal of the lower Court's decree by a compromise decree of the appellate Court. These decisions were binding on the court below but they were not noticed. In view of these decisions, the learned counsel for the appellant does not contest the position that even if the decree is varied by virtue of compromise decree, the parties are entitled to restitution. The learned District Judge however reversed the order of the lower court and held that the petitioner was entitled to the restitution of the said sum.