J P REGO Vs. ANANTHAMATHI

JUDGEMENT

(1.) The question in this appeal relates to the restitution by the appellant of a sum of Rs. 9,000 with interest to respondents 1 to 3. The sum in question was paid to him in these circumstances. O.S. No. 42 of 1931, on the file of the Subordinate Judge of South Kanara was a suit to enforce a mortgage executed by the first defendant in favour of the plaintiff. The second and third defendants in the suit belonged to the same joint family as the first defendant, but relief was sought by the plaintiff against the first defendant alone on the ground that the property mortgaged was the self-acquired property of the first defendant and that he had taken the amount advanced under the mortgage for his own purposes. The contention of the defendants, was that the property was family property and that there was no family necessity for the loan secured by the mortgage of it. The suit was decreed for the plaintiff on 10 August, 1932, and in execution of his decree he brought the property to sale and purchased it himself for Rs. 7,200. The defendants, however, deposited the requisite sum under the provisions of Order 21, Rule 89, a sum which, with incidental charges amounted to Rs. 11,470-10-5, and the sale was set aside. The appellant held a decree (in O.S. No. 71 of 1930), against the plaintiff in O.S. No. 42 of 1931 and in R.E.P. No. 126 of 1935, he applied for the attachment of Rs. 9,000 out of the sum of Rs. 11,470 in Court. Attachment was ordered. The appellant then applied for the transfer of the attached sum of Rs. 9,000 to his execution petition in O.S. No. 71 of 1930. The transfer was ordered on 7 August, 1935, and on the same date payment of this sum of Rs. 9,000 to him was made.

(2.) Meanwhile, an appeal (A.S. No. 21 of 1933), was pending in the High Court against the decree in O.S. No. 42 of 1931. Judgment in this appeal was delivered on 9 November, 1937. It was held that the mortgaged property was family property, and, as it had never been the plaintiff's case that the mortgage was for purposes binding on the family, the result was that the suit was dismissed. Relying, therefore, on the decree of the High Court appellants 1 to 3 in O.S. No. 42 of .1931, applied as petitioners in E.P. No. 170 of 1938, the petition out of which the present appeal arises, for restitution of the sum of Rs. 11,470 deposited by them under the provisions of Order 21, Rule 89, with interest. They prayed (i) for the recovery of the whole amount of Rs. 11,470 from the plaintiff in O.S. No. 42 of 1931, with interest at six per cent. from 5 April, 1935 till 5 September, 1938 and (ii) for the recovery of Rs. 9,000 from the present appellant with interest at six per cent. from 26 July, 1935 to 5 September, 1938. The learned Subordinate Judge directed that the plaintiff should refund a sum of Rs. 2,470-10-5 with interest at 5 per cent. from 5 April, 1935, until the date of payment, and that the present appellant should refund the sum of Rs. 9,000 with interest at 5 per cent. from 9 August, 1935 until the date of payment. The appeal now under consideration is by the decree-holder in O.S. No. 71 of 1930 to whom the sum of Its. 9,000 was paid. Defendants 1 to 3 in O.S. No. 42 of 1931, are respondents 1 to 3 in the appeal, and the plaintiff in that suit is the fourth respondent. They will hereinafter be referred to by the designation of respondents 1 to 4,, respectively.

(3.) We have not received in the determination of this appeal any assistance from the order of the learned Subordinate Judge for the reason that his consideration of the petition has proceeded on a mistake of fact which is fundamental in regard to the issue involved in the case. In paragraph 5 of his order he states that the appellant attached the decree in O.S. No. 42 of 1941. This is not correct. The appellant did not attach the decree. He attached part of the sum deposited under Order 21, Rule 89, which, if the attachment had not been made, would have been payable to the 4 respondent. Section 144 of the Civil P. C. reads: Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, 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; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. There is clear authority Angunna Reddi V/s. Subbaraya Chettiyar (1930) 59 M.L.J. 225 : I.L.R. 53 Mad. 796 that a penson who has attached a decree is the representative of the original decree-holder and will be liable, in an appropriate case, to make restitution. under the. provisions of Section 144. He is in fact a party within the meaning of the section. As, however, the present appellant did not attach the decree he is not a party to it. His position is merely that of a third party to whom, by order of Court indeed and that is important, money otherwise payable out to the decree-holder has been paid. which, if it had remained in his hands, there is no doubt that the decree-holder would have been obliged to restore. The question, therefore, is whether in law a person in the position of the appellant, not in any technical sense a party to the decree, can be compelled to make restitution of the money paid to him.