ASUTOSH GOSWAMI Vs. UPENDRA PROSAD MITRA

JUDGEMENT

(1.) This appeal is directed against an order for restitution. The facts material for the determination of the questions in controversy are not in dispute and may be briefly set out. On the 11th December 1899 the appellants, members of a family of Goswamis, obtained a decree for money against a large number of defendants, members of a family of Mitras. Execution was taken out from time to time, but practically to no purpose. On the 6th January 1909 an application for execution was made, more than three years after the date of the previous application. Objection was thereupon taken on the 3rd February 1909 by the judgment- debtors that the application was barred by limitation. This objection was registered and numbered as a separate proceeding, and was overruled on the 5th August 1909. Five of the judgment-debtors then appealed to this Court on the 10th May 1910. The appeal was decreed on the 9th January 1914 as regards four of the appellants and was dismissed as regards the other. This Court held that the bar of limitation was available to the judgment-debtors, except to the one who had made an acknowledgment within the meaning of Section 19 of the Limitation Act, and proceeded to give a direction in the decree for restitution in the following terms: "The result is that this appeal is allowed in so far as the appellants other than Jogendra Prosad Mitra are concerned, and any sums belonging to them which may have been taken away by the decree-holders under the order of the Court below must be refun led at once." To make this order intelligible, it is necessary to state what had happened in the Court below in the interval. On the 5th July 1909, while the application for execution made on the 6th January 1909 was still" under consideration, the decree holders made a fresh application for execution, with a view to attach funds in Court which stood to the credit of two of the judgment-debtors. The decree-holders desired that this application should be consolidated with the previous application which was for execution by attachment and sale of moveables owned by the judgment-debtors. The judgment debtors objected to the amalgamation of the two applications, and on the authority of the decision in Sheikh Ahmed Chowdhry v. Shahzada Khatoon 7 C.L.R. 537, the Court directed the subsequent application to be registered and numbered as a separate proceeding. There were thus three proceedings on the records of the Court, namely, the two applications for execution made on the 6th January and 5th July 1909, respectively, and the objection case initiated on the 3rd February 1909. The objection case raised a question which went to the root of both the applications for execution, because if the objection prevailed, no relief could be granted to the decree-holders on the basis of either application. This was evidently in view when the Court directed on the 3lst July and 2nd August 1909 that the second application was to be put up along with the first application and the objection case. The objection case, as we have seen, was dismissed on the 5th August 1909. On that date we find it recorded, in the order sheet of the case on the second application, that as the objection had been disallowed after contest, the decree-holders were to take steps. The decree-holders thereupon applied for payment of the fund in deposit in Court to the credit of two of the judgment-debtors. There was an ad interim stay of proceedings under the orders of the District Judge passed at the instance of the judgment- debtors; but the stay order was ultimately withdrawn on the 25th September 1909, as the judgment-debtors had failed to show that the circumstances of the decree-holders were such that there would be any difficulty in obtaining restitution, should the judgment-debtors ultimately succeed in their appeal in the objection case. Here it may be observed parenthetically that the judgment-debtors had lodged an appeal before the District Judge against the order in the objection case; it ultimately transpired, however, that the appeal lay to the High Court, because the decree, though for a smaller sum than Rs. 5,000, had been made in a suit valued at above Rs. 5,000; it was for this reason that the appeal in the objection case was not lodged in this Court till the 10th May (sic). To return to the narrative of events in the Court below, we find that after the stay order had been withdrawn by the District Judge on the 25th September 1909, the Subordinate Judge on that very day directed payment to the decree-holders of the fund in Court. No appeal was preferred against this payment order; none, indeed, could have been profitably preferred, for payment could be resisted only if the decree was barred by limitation, and that was the very point involved in the appeal against the order in the objection case. After the appeal in the objection case had been decreed in this Court, the two judgment-debtors, whose deposit had been taken away by the decree-holders, applied to the Court below for restitution on the 30th May 1914. The decree- holders objected substantially on six grounds, namely, first, that the sum in question was not covered by the direction for restitution made by this Court in the appeal against the order in the objection case; secondly, that restitution should not be granted, as no appeal had been preferred against the payment order, and what had been reversed by this Court was not the payment order but the determination in the objection case that the decree Was not barred by limitation; thirdly, that as the effect of Section 28 of the Limitation Act was merely to bar the remedy and not to extinguish the right, no order for restitution could justly be made; fourthly, that the application for restitution was barred by limitation; fifthly, that the fund, though it stood in the name of two of the judgment-debtors, was not their exclusive property and belonged, partly at least, if not entirely, to Jogendra Prosad Mitra, against whom the application for execution was not barred by limitation; and sixthly, that the claim for interest was unjust and excessive. The Subordinate Judge held that the sum claimed by way of restitution was covered by the order made by this Court, and, accordingly, directed the decree-holders to refund the sum withdrawn by them together with interest at 12 per cent. per annum and costs. We are now invited by the decree holders to consider the propriety of this order.

(2.) The first point for consideration is, whether the sum withdrawn by the decree-holders is covered by the direction given by this Court in the appeal in the objection case. We are of opinion that the direction, strictly construed, does not cover the money in controversy. The decretal order drawn up in this Court removes any ambiguity which may be supposed to be involved in the judgment; the decree directs explicitly that the order of the Court below, dated the 5th August 1909, directing execution to proceed be and is set aside, and further orders that the respondents-decree-holders do refund to the appellants other than Jogendra Prosad Mitra, (whose appeal was dismissed), any sums belonging to them which might have been taken away under the said order of the Court below. The decree-holders argue that this refers in terms to sums, if any, taken away by them under the order of the 5th August 1909 and that the sum now in question cannot, by any stretch of language, be deemed to have been taken away by them under that order. This is a reasonable contention; the only proceeding then before this Court was the objection case, and it would not be right to put an extended interpretation upon our order, so as to prejudice the decree holders, without opportunity afforded to them to show cause why restitution should not be granted in respect of sums taken away by them in a proceeding which was, in form at least, never brought up to this Court. We hold accordingly that the direction previously given by this Court does not conclude the matter which must, consequently, be determined on the merits.

(3.) The second point for consideration is, whether restitution may be claimed by the judgment-debtors, although they did not appeal against the payment order. The decree- holders contend in substance that restitution should not be granted, as the payment order has never been formally reversed on appeal. We are of opinion that there is no substance in this technical objection. It is a general rule that upon the reversal of a judgment, order or decree, all connected or dependent judgments or orders fall with it, specially judgments subsequently entered and dependent thereupon; but this rule does not operate by implication to set aside a distinct and independent judgment or proceeding, though it forms a part of the same litigation. Illustrations of the application of this doctrine may be found in a variety of cases in the reports: Chicago B. & V.R. Co. v. Fosdick (1882) 106 U.S. 47 : 27 Law Ed. 47 : 16 Otto. 47; Butler v. Eaton (1890) 141 U.S. 240 : 35 Law. Ed. 713. Whether a judgment or order is a dependent judgment or order, that is, merely ancillary and accessory to another judgment so as to share its fate and fall to the ground along with it, must be determined from the nature and scope of the proceedings, and may, as some of the cases in the books show, give rise to questions of considerable nicety and consequent divergence of judicial opinion: Shama Purshad Roy v. Hurro Purshad Roy 10 M.I.A. 203 : 3 W.R. (P.C.) 11 : 2 Suth. P.C.J. 103 : 19 E.R. 948; Jogesh Chunder Dutt v. Kali Churn Dutt 3 C. 30 : 1 Ind. Dec. (N.S.) 611. In the case before us the payment order was manifestly dependent upon the decision that the decree was not barred by limitation and was consequential thereupon. This is indicated by the substance as well as the form of the proceeding. No payment order could be made till it had been decided that the decree was still alive and capable of execution. This was expressly recognised when, on the 2nd August 1909, the application for execution by way of attachment of the deposit was ordered to be put up after the disposal of the objection case, as also when, on the 5th August 1909, the decree-holders were directed to take steps as objection had been disallowed after contest. That this was the true position was also clearly understood by the parties, when on the 25th September 1909, the decree-holders induced the District Judge to revoke the stay order on the ground that there would be no difficulty in the way of restitution, if the appeal already preferred in the objection case ultimately proved successful. In these circumstances, we may legitimately hold that the payment order was in essence ancillary to the decision in the objection case, and that the cancellation of the order in the objection case by this Court as the Court of appeal involved by necessary implication a cancellation of the consequential payment order. In this view, the judgment-debtors are entitled to restitution, even though they did not formally appeal against the payment order.