(FIRM) RATNAJI CHANDANMALL Vs. KOLLI RAMAKRISHNAYYA

JUDGEMENT

(1.) The question involved in this appeal is one of restitution. The facts necessary for the disposal of the same may be briefly stated. Respondent 1 filed a suit O.S. No. 657 of 1928, on the file of the District Munsif's Court of Repalle against one Moturi Chimpayya and others for recovery of possession of certain immoveable property and for mesne profits for the year 1927. During the pendency of that suit he applied for the appointment of a receiver and a receiver was accordingly appointed on 12 December 1929. The receiver leased the said property and deposited the amount collected by him, a sum of Rs. 451, into Court as rent for the year 1929. The said suit was ultimately decided in favour of the plaintiff. He then applied to the Court for payment of the said sum of money, but the Court took the view that since he had not prayed for future profits in his plaint, he would not be entitled to the said amount until he takes appropriate proceedings to establish his right to the same and gets a decree. The result of this order was as between respondent 1 and the defendants in the said suit that the title of the plaintiff to the said fund in Court was negatived and the judgment-debtor from whom the property was taken possession of by the receiver must be deemed to be entitled to the same. So long as the said order stood unreversed and till the plaintiff established his right to the same, it would not be open to the plaintiff-respondent 1 to resist the claim of the said Moturi Chimpayya and other defendants in the suit or anybody who derives title from them or by virtue of the said right asserts a claim thereto.

(2.) The appellant in this appeal filed a suit, O.S. No. 295 of 1929, on the file of the District Munsif of Rapalle against the said Moturi Chimpayya and others for recovery of a sum of money and obtained a decree; Subsequent to the order made in O.S. No. 657 of 1928 negativing the title of the plaintiff, to the amount in Court deposit in that suit, the appellant applied for an order of attachment of the said sum in execution of his decree. The plaintiff- respondent 1 intervened and objected to the said attachment alleging that he had preferred an appeal against the order declining to grant him the said amount in his suit and that the appellant is not entitled to attach the said amount as the fund did not belong to the judgment- debtors. As the title to the said fund was already negatived the District Munsif by his order dated 29 August 1930 directed the attachment to issue and subsequently paid over the said amount to the appellant. Meanwhile the plaintiff respondent 1 who preferred an appeal against the order negativing his title to the said fund succeeded in his appeal, and it was therein held that the plaintiff was entitled to the said money and the judgment-debtors had no right thereto. Thereupon the plaintiff-respondent 1 put in an application for restitution of the money taken by the appellant herein. Both the lower Courts concurred in granting the relief to the plaintiff-respondent 1. Mr. V. Suryanarayana contends that neither Section 144 nor Section 151, Civil P.C., applies to the case, that the lower Court had no jurisdiction to grant restitution, that the order directing attachment of the said fund was final and so long as the said order stands, it is not open to the plaintiff-respondent 1 to claim the said sum of money. In my opinion, this contention is unsustainable.

(3.) There can be no question that Section 144 would not apply to the case but the non- applicability of Section 144 would not prevent a Court from granting restitution in the exercise of its inherent powers and this is eminently a fit case wherein the Court should exercise its inherent powers. It is a well-settled principle of law that where a Court has wrongly paid the money to a person not entitled thereto, it has not only the power but it is also its duty to recover it from him. In O.S. No. 657 of 1928 when the Court appointed a receiver and he deposited the money into Court, the moment the plaintiff succeeded in the suit it was the duty of the Court to pay over the said money to the plaintiff. The said fund was held in trust for the plaintiff by the Court but owing to an erroneous view, it parted with the said fund to a person who was not entitled thereto. When it was found that the view taken by the Court was wrong, there is inherent jurisdiction in the Court to call back the said money. Curgenven, J. in Palaniappa Chetti V/s. Ramanathan Chettiar . after referring to the observations of Cairns, L.C. in Rodgers V/s. Comptoird Escompte de Paris (1809) 2 PC 393, viz., "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," observed thus: This statement of the law would appear general enough to cover a case where the executing Court has been made to take a wrong step by an erroneous decision passed by another Court.