M P PALANIAPPA CHETTIAR Vs. SARAMANATHAN CHETTIAR

JUDGEMENT

(1.) The appellants in the miscellaneous appeal, who are also the petitioners in the revision petition, applied to the Subordinate Judge, Ramnad, for restitution in the following circumstances. In O.S. No. 6 of 1911 on the file of the same Court they obtained a decree upon a promissory, note for a sum of Rs. 28,575, and as a result of adjustment between the parties the judgment-debtors paid into Court a sum of Ea. 17,618. Respondent 1 filed the suit O.S. No. 14 of 1921 in the Subordinate Judge's Court of Sivaganga for a declaration that he was entitled to the amount of this decree, the appellants being only his representatives, and obtained a declaration to this effect and further that he was entitled to continue the execution proceedings of the said decree. An appeal (A.S. No. 135 of 1924) was preferred to this Court and this judgment was modified, the respondent being declared entitled only to a 5/17ths share in the promissory note and therefore in the decree. In connexion with this appeal application was made for an injunction restraining the respondent from executing the decree in O.S. No. 6 and drawing the money in deposit and an order was made that he might draw it on furnishing security to the satisfaction of the Ramnad Sub-Court.

(2.) The security was furnished and the money was drawn. The result of A. Section No. 135 of 1924 was that the present appellants were entitled to recover 12/17ths of this amount. They accordingly filed this petition before the Subordinate Judge of Ramnad for restitution. Six issues were framed, the first of which inquired whether the Court had jurisdiction to entertain the application. The learned Subordinate Judge has found upon this in the negative. The judgment is not very clear, but he appears to hold that Section 144, Civil P.C., will not apply and that apart from that provision the Court has no inherent powers to order restitution. The appeal before us relates to the finding under Section 144 and the revision petition has been filed in case the facts should not come within that section but should justify the Court in exercising its inherent powers. We propose first to consider the position apart from the circumstance that the respondent has bound himself by the execution of a security bond to obey any orders that may be passed for the refund of the money. It will be observed that the decree in O.S. No. 14 of 1921 declared that the plaintiff in that suit was entitled to continue the execution in O.S. No. 6 of 1911. In such circumstances, it has been held in Sethuram v. Shanmugam Pillai (1898) 21 Mad. 353 that he occupies the position of a transferee decree- holder under Order 21, Rule 16, Civil P.C., i.e., he possesses an interest which has been transferred to him by the operation of law. He may thus be regarded as a party to 0. 8. No. 6 of 1911 and the general question which arises is whether when execution has been wrongly taken by a transferee decree-holder, the Court can upon discovering the error accord restitution to the rightful decree-holder. Some attempt has been made to argue that if such a power exists it should be exercised not by the Court which passed the decree in O.S. No. 6 of 1911 but by the Sivaganga Court, which made the declaration of the respondent's title. This is a wholly untenable position. The latter Court was only concerned with making the declaration and had no power to allow the decree-holder to draw the money lying to the credit of the other suit. This was the function of the executing Court and if execution was taken by the wrong person, it is that Court, if any, that should rectify the mistake. It is first for consideration, whether the case can be brought within the terms of Section 144, Civil P.C. The section has replaced Section 583 of the Code of 1882 and is drafted in noticeably wider terms. But we hesitate to say whether a case of this nature was in contemplation when it was so drafted. The words, "where and in so far as a decree is varied or reversed, the Court of first instance shall " seem to us to be directed to the ordinary case where the decree of the executing Court has been varied or reversed, the use of the phrase "the Court of first instance," supporting this construction. In more than one case, see for instance in 1 Ashutosh Nandi V/s. Kundal Kamini, Dasi , and Sohnun V/s. Mast Ram A.I.R. 1929 Lah. 657, it has been held that while a wider interpretatian should be given to the section, it only applies where restitution is sought owing to a change in the decree under which execution has been taken. There is indeed a case, Mrs. Burn Murdoch V/s. Ma Saw Kyi A.I.R. 1931 Rang. 21, which has taken the contrary view. That too related to a declaratory decree out of the modification of which in appeal the necessity for making restitution arose. With due respect to the reasoning employed in that case, we find it quite unnecessary to strain the language of the section, and would prefer to base our decision upon the alternative ground that a matter of this sort lies within the inherent jurisdiction of the Court. It is a general principle, recognised in a number of decisions, that when a Court has wrongly paid out money it has not only the power but also a duty to recover it from the person so paid. In Jai Barham V/s. Kedar Nath A.I.R. 1922 P.C. 269, their Lordships of the Privy Council make the following observations: It is the duty of the Court under Section 144, Civil P.C., to 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. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.

(3.) And quotation is made from Cairns, L.C., in Rodger V/s. Comptoir D Escompete de Paris (1871) 3 P.C. 465: One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression the act of the Court is used it does not mean merely the act of the primary Court or any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.