RAJENDRA KUMAR Vs. RAJENDRA NATH

JUDGEMENT

(1.) This appeal has been preferred by certain decree-holders from an order passed by the Subordinate Judge of Khulna on 6 March 1929 ordering refund to the respondents of a sum of Rs. 1,200. The order came to be passed under the following circumstances: The appellants before us were the plaintiffs in, a suit which they had instituted against a very large number of persons, about 516 in all, as defendants for recovery of khas possession of certain lands. The trial. Court decreed the suit with costs against all the defendants. Out of these defendants 12 persons then preferred an appeal to this Court. Of them one subsequently withdrew from the appeal with the result that he was put into the category of respondents in that appeal. The other 11 respondents were defendants 18, 57, 93, 97, 98, 171, 208, 225, 34, 112 and 117. The respondent in the appeal before us was defendant 57 in the suit and one of the appellants in the aforesaid appeal. During the pendency of the appeal, these appellants made an application for stay of delivery of possession to the decree-holders, and upon certain orders passed by this Court in the appeal aforesaid, the matter was referred to the trial Court for consideration. Eventually the trial Court on 3 April 1925 made an order directing the judgment-debtors who had preferred the aforesaid appeal to deposit in Court a sum of Rs. 1,200 out of the costs allowed in the decree, the understanding being that on the said amount of costs being deposited there would be a stay of the proceedings relating to delivery of possession. Whether the proceedings relating to delivery of possession were in fact stayed or not, in consequence of a receiver having been appointed, is a matter with which we are not concerned in the present appeal.

(2.) It is sufficient to state that in pursuance of the order dated 3 April 1925, the respondent, that is to say, defendant 57 in the suit, put in a sum of Rs. 1,200 in Court as deposit. From certain petitions that were filed it is quite clear that this amount was put in by the said respondent not merely on his own behalf but also on behalf of other persons who were co-appellants in the appeal which had been filed in this Court and who were also interested in the stay of delivery of possession. The chalan as regards this deposit which is on the record however shows that it was the respondent who alone put in the money. While the appeal was pending, after certain interlocutory orders were passed by the Court, the decree- holders eventually on 21 November 1926, obtained from the Court a pay order for Rs. 1,200 in realization of their decree for costs--and it may be taken for our present purpose--the costs to be realised from all the defendants in the suit. The appeal before this Court was thereafter heard and decided on 7 April 1927 with the result that in so far as the appellants therein wore concerned it was allowed and the decree which the lower Court had passed as against the said appellants was discharged and certain other orders were passed as regards the costs of the appeal and so forth. On 11 September 1928 the respondent applied to the Court of the Subordinate Judge for refund with interest of the amount of Rs. 1,200 which had been deposited under orders of the Subordinate Judge dated 3 April 1925. It was stated in that application that he had deposited the amount after borrowing the same from certain other persons and that in view of the fact that the decree of the Court of first instance was set aside he was entitled to the refund of the amount together with interest. It is this application of the respondent on which the Subordinate Judge on 6 March 1929 made the order from which the present appeal has been preferred. The Subordinate Judge, as already stated, allowed the application of the respondent and ordered the decree holders to refund to him the sum of Rs. 1,200 within seven days, failing which he ordered execution to proceed in respect of the amount, In the appeal which the decree-holders have preferred from this order two points have been urged on their behalf.

(3.) It has been stated in the first place that the amount of Rs. 1,200 which was in deposit in Court was realized by the decree-holders in execution of their decree for costs as against all the judgment-debtors and that therefore in asking for a refund the respondent is not entitled to ask for anything beyond what would be his share of the costs under the decree proportionate to his interest in the property which formed the subject-matter of the suit.