MOHAMMAD TAQI KHAN Vs. RAJA RAM

JUDGEMENT

(1.) This is an appeal under Section 10, Letters Patent, against a judgment of a learned Judge of this Court, dated 25 August 1941 by which he reversed concurrent decrees of two Courts below in proceedings relating to restitution under Section 144, Civil P. C. Mul Chand, father of the respondents Raja Ram, Chiranji Lal and Mulchand's brother, Hoti Ram obtained a mortgage decree in Suit No. 157 of 1923 from the Court of the Civil Judge of Parrukhabad against the appellants, Mohammad Taqi Khan and Mt. Rahmat Khatoon who are husband and wife and against eight other persons for a sum of Rs. 5538-211. Part of this decree to the extent of Rs. 3190 was satisfied by some judgment-debtors other than Mohammad Taqi Khan and Mt. Rahmat Khatoon. In order to recover the balance of the decree, an application for execution was made by decree-holders on 25 August 1931 and in the course of execution a sale of immovable property of the judgment-debtors was notified. On 20 May 1932 Mohammad Taqi Khan and Mt. Rahmat Khatoon raised an objection to the sale on the ground that the decree was barred by limitation. Nevertheless before this objection could be considered on its merits, on 27 May 1932 a public sale of the judgment-debtors property took place for Rs. 2900 and the property was purchased by the decree-holders. On 25 June 1932 Mohammad Taqi Khan and Mt. Rahmat Khatoon deposited, under Order 21, Rule 89, Civil P. C. a sum of Rs. 3138-10-0 for payment to the decree-holders. On 8th December 1932 the execution Court dismissed the objection of the judgment- debtors holding that the decree was not barred by limitation and on the same date it set aside the sale on account of the money due under the decree having been deposited by the judgment-debtors under Order 21, Rule 89, Civil P. C. On 10th December 1932 Mohammad Taqi Khan and Mt. Rahmat Khatoon made an application to the execution Court not to pay the sum deposited to the decree- holders and to keep it in deposit till the controversy with regard to the limitation of the decree had been finally decided between the parties but the Court did not accede to this request and on 23 December 1932, the deposit was withdrawn by the decree-holders. The judgment-debtors, Mohammad Taqi Khan and Mt. Rahmat Khatoon, preferred an appeal against the judgment of the execution Court by which the decree was held to be within time and by a judgment dated 26th November 1936 of this Court their appeal was finally allowed and it was held that the mortgage decree was time-barred against Mohammad Taqi Khan and Mt. Rahmat Khatoon.

(2.) On 11 August 1939 an application was made by Mohammad Taqi Khan and Mt. Rahmat Khatoon under Section 144, Civil P. C, against the decree-holders for recovery of the sum of Rs. 3138-10-0 which they had deposited on 25 June 1932, with interest at six per cent. per annum on that sum. The execution Court by its judgment dated 2 September, 1939 decreed the claim for the principal amount and the interest claimed. The decree-holders who were thus made liable to refund made an appeal to the District Judge of Farrukhabad and the learned Judge found by his judgment dated 5 January 1940 that as Mohammad Taqi Khan and Mt. Rahmat Khatoon were two out of the ten judgment-debtors liable under the decree whose property was sold in circumstances mentioned above and as the decree was not time-barred against other judgment-debtors, Mohammad Taqi Khan and Mt. Rahmat Khatoon were only entitled to re. cover the proportionate amount of the deposit which had been made; the proportionate amount to be determined with reference to their share in the property sold and on this finding, he modified the decree of the execution Court and granted to Mohammad Taqi Khan and Mt. Rahmat Khatoon a decree for recovery of the proportionate amount of the principal sum, Rs. 3138-10-0 and its interest, Rs. 1341. The decree-holders Raja Ram and Chiranji Lal made a second appeal to this Court and a learned Judge of this Court holding that the application for restitution was not maintainable under Section 144, Civil P. C, allowed the appeal, set aside the decrees of both the Courts below and dismissed the application for restitution. Against this judgment of a learned Judge of this Court this Letters Patent appeal has been filed.

(3.) The first question which falls to be considered in this case is whether in the circumstances mentioned above, Mohammad Taqi Khan and Mt. Rahmat Khatoon were entitled to seek restitution under Section 144, Civil P. C. It is contended on behalf of the decree-holders that the right of restitution, under Section 144, Civil P. C, only arises in those cases where a decree is reversed or varied by a superior Court and it goes no further than this that it allows the Court to grant relief with regard to those matters which came into existence as a consequence of the decree which had been varied or reversed in appeal. In the case before us the contention of the decree-holders is that the decree which was varied by the Court of appeal was the decree of the lower Court holding that the decree-holders decree was not barred by limitation and this decree was made on 8 December 1932, and if anything had been done as a consequence of this decree, the judgment-debtors would have been entitled to restitution, but nothing was done in pursuance of this decree. The judgment-debtors in this case are seeking restitution with regard to two matters, one of which is the auction sale which took place and the other is the deposit which was made for setting aside the sale and both these matters took place on 20 May 1932, and on 25 June 1932, respectively, i.e., six months before the decree was made which had been reversed in appeal. The decree- holders further contend that the payment which was made on 25 June 1932, and which was sought to be refunded in this case was not made in execution of the decree at all but was made under a specific statutory provision contained in Order 21. Rule 89, Civil P. C., for avoidance of sales and such a payment cannot be taken as money paid in execution of the decree which had been reversed.