KANDASAMI MUDALI Vs. ANNAMALAI REDDI

JUDGEMENT

(1.) IN execution of a mortgage decree against the appellant his property was brought to sale on 10 August, 1927. The preliminary decree in the suit had been made ex parte but before the passing of the final decree the appellant had applied to have the ex parte preliminary decree set aside. He did not succeed in this application until the matter had been carried to the appellate Court when the ex parte decree was set aside and the suit was remanded for fresh trial. This was on 16 January, 1928. The result of this new trial was that the mortgage amount decreed was Rs. 278-9-3 less than the amount of the ex parte decree. This new decree was made on 31 October, 1928. An application for restitution was made by the appellant of the excess amount received by the respondent from the sale under the ex parte decree. This application was made on 30 October, 1931. The question is, is this application in time? The District Judge has held that restitution could have been and ought to have been claimed when the ex parte decree was set aside on 16 January, 1928, and consequently that the application is time barred. This decision would be right if Art. 181 of the Limitation Act governed the application. It has been held by the Lahore High Court in Gujar Mal V/s. Narayan Singh A.I.R. 1931 Lah. 504 that Art. 181 is the relevant provision to applications for restitution. But a Bench of this High Court in Unnamalai Ammal V/s. Mathan has held that an application for restitution is in reality an application for execution of a decree, on the ground, as I understand it, that it is to enforce a legal obligation arising from a decree itself, that is to say, an obligation upon the decree-holder to refund more than he is entitled to receive under the decree. The Madras ruling is that Art. 182 of the Limitation Act is the appropriate provision. Clause 7 of this Art. gives a period of three years, where the application is to enforce the payment which the decree directs to be made on a certain date, from that date. Therefore it has been argued for the appellant that the decree having been made on 31st October, 1928 and the decree having given 3 months time for payment, the application for restitution made on 30 October, 1931, is in time. IN my opinion this contention is correct. When an ex parte decree is set aside and a fresh trial ordered, I do not think that this process can be rightly described as a variation or reversal of the decree which has been set aside. The parties are remitted to the position in which they stood before the ex parte decree was made. There is a retrial and the decree made upon this retrial is a new decree. Being a new decree it is not a decree varying or reversing the decree which has been set aside. The effect of the new decree was to fix the liability of the defendant and if the result is that the plaintiff is entitled to less than he has actually received upon the execution of the decree which has been set aside, he is in equity, at all events, bound to restore the excess. Section 144, Civil Procedure Code, may not be strictly applicable to the cage, but upon the equitable principle which underlies Section 144, and also in pursuance of the inherent power of the Court to prevent an abuse of its process, I think that an order for restitution of the balance can be made in favour of the appellant. As I have already said, this application was made within the time-limit fixed by Art. 182 and it was in time.

(2.) THE result is that the appeal is allowed with costs and the order of the District Munsiff will be restored. (Leave to appeal is refused.)