PALANIANDI PILLAI Vs. ROSAPPA PILLAI

JUDGEMENT

(1.) The question raised in this appeal is whether an application for restitution made by the appellants for recovery of a sum of money deposited by them into Court for setting aside a sale under Order XXI, Rule 89 of the Civil P. C. is sustainable. The plaintiff respondent in this appeal filed a suit O.S. No. 440 of 1917 to recover a certain annuity from and cut of the property in the schedule annexed to the plaint filed by him. The properties were owned by the 3 defendant from whom the 1 defendant purchased; and he in turn sold them to 2nd defendant. A decree was passed in the suit in favour of the plaintiff directing among other things payment of the amount by sale of the properties. Tending the suit the said properties appear to have been purchased by the, appellants from the 2nd defendant. In consequence of the said decree in the above suit the properties were brought to sale and purchased by the plaintiff decree-holder. The appellant made an application to set aside the sale under Order XXI, Rule 89, Civil Procedure Code, by depositing the amount of the decree into Court and the sale was accordingly set aside. This was in or about June, 1921. Against the decree in the said O.S. No. 440 of 1917, an appeal was preferred by the defendants and the decree in favour of the plaintiff was reversed in A.S. No. 186 of 1920 on the file of the District Court, Salem. This was on November 2, 1921.In consequence of the said decision the appellants filed E.A. No. 74 of 1922 on January 12, 1922, for restitution of the monies they deposited into Court. The application was dismissed on April 4, 1922. But on appeal the said order was reversed and the appellants were declared entitled to restitution. This was in or about April 7, 1924, and against this order C.M.S.A. No. 2 of 1925 was preferred to the High Court. Pending these proceedings against the decision in A.S. No. 186 of 1920, S.A. No. 276 of 1922, was preferred to the High Court by the plaintiff. On February 12, 1925, the High Court reversed the decree of the Appellate Court in A.S. No, 186 of 1920 and restored the decree in O.S. No. 440 of 1917. Against this decree a Letters Patent Appeal was preferred being, Letters Patent Appeal No. 98 of 1925 on the file of the High Court, and on November 29, 1927, the Letters Patent Appeal was allowed and the result of the decision therein was that the decree of the Appellate Court in A.S. No. 186 of 1920, was restored and the plaintiff's suit dismissed. It may also be stated that the C.M.S.A. No. 2 of 1925 was also disposed of and the same was dismissed on the same date. On November 19, 1928, the decree in the Letters Patent Appeal was amended as the cause title was found to be defective in that the names of the legal representatives of the 1 defendant's representatives were not in the cause title of the decree as drafted but the name of the 1 defendant, a dead man, was retained in the decree as originally drafted. Within three years from this date the appellants filed E.A. No. 611 of 1931 claiming restitution of the amount deposited by them with interest. They prayed that the Court may be pleased to grant restitution and direct the plaintiff respondent to pay the petitioner the amount with subsequent interest. The District Munsif dismissed the application on the ground that the application is unsustainable in that there was already an order for restitution made in E.A. No. 74 of 1922 and the same prayer cannot be asked for again, and further that there was "no prayer for execution." On appeal from this decision the learned District Judge summarily dismissed the appeal on the ground that an order for restitution bad already been made and it is an executable order and further the Court must be moved in the appropriate way, and that is, by an execution petition. Against this order the present second appeal has been preferred.

(2.) It is contended by Mr. Sitarama Rao that both the lower Courts were wrong in the view they took, viz., that the appellants should have executed the order for restitution passed in E.A. No. 74 of 1922. It seems to mo that Mr. Sitarama Rao is right in his contention. Execution Appeal No. 74 of 1922 was filed by virtue of the decision in A.S. No. 186 of 1920. But the decision was upset in S.A. No 276 of 1922. The result of the decision in the Second Appeal was that the appellants could not maintain successfully E.A. No. 74 of 1922 and the application must be deemed to have become infructuous. Till the decision in the Letters Patent Appeal established the rights of the defendants Nos. 1 and 2 the appellants could not have applied for restitution at all. It is only in consequence of the decree in Letters Patent Appeal that their right to apply accrued. The appellants were therefore in order in filing the present application for restitution.

(3.) The next contention is whether the appropriate way of moving the Court was by an execution petition and not in the form of an application in the manner filed by the plaintiffs. The argument seriously pressed on behalf of the plaintiff-respondent in this case which apparently prevailed in the Courts below is this In a series of cases by which I am bound our High Court has consistently taken the view that an application for restitution is an execution of a decree and governed by Art. 182 of the Limitation Act. The only way in which an application can be made is by way of an execution petition framed in accordance with Order XXI, Rule 11, Civil Procedure Code. The present petition does not fulfill the Requirements of Order XXI, Rule 11, Civil Procedure Code and it is defective in a material particular as it does not state in what way the assistance of the Court is sought, whether by arrest of the plaintiff or attachment of his properties, and the application was rightly rejected by both the Courts. It is no doubt true that our High Court has taken the view that an application for restitution is an application for execution of the decree, whatever may be view of the other High Courts, and though there is much to be said in favour of the other view. Vide Saraj Bhusan Ghose v. Debendra Nath Ghose Parameshwar Singh V/s. Sitaladin Dube .The ground on which the application is said to be for execution, of the decree is thus stated in Unnamalai Ammal v. Arunachalam 6 L.W. 359 : 42 Ind. Cas. 530 : (1917) M.W.N. 643 : 33 M.L.J. 413 : 22 M.L.T. 333 What is sought to be enforced is the legal obligation arising from the decree itself and not an independent obligation. It seems to ns that we must treat the application as an application for execution of the decree and this also accords with the view taken by the Bombay High Court in Hamidalli V/s. Ahmadali 45 B.1137 : 62 Ind. Cas. 233 : A.I.R. 1921 Bom.67 : 23 Bom. L.R. 480, where Sir Norman Macleod, C.J., says: It is the decree of the Appellate Court which entitles the successful appellant to get back something which he had been deprived of by the decree of the lower Court under which the then successful party had actually received possession. In order, therefore, to get back what ha has lost, the successful appellant must apply for execution of the order which entitles him to get back that possession.