BITHAL DAS Vs. JAMNA PRASAD

JUDGEMENT

(1.) The facts out of which this appeal arises are these : On the 7 of October 1901 an exparte decree on a mortgage was passed in favour of the appellants. Before, however, the decree was made, the appellants had obtained an injunction under Section 492 of the Civil P. C. restraining the respondents from realising certain money deposited in Court to their credit. After the passing of the ex parte decree the appellants withdrew from Court Rs. 19,041 out of the sum mentioned above in satisfaction of their decree. The decree, however, was set aside on an application made by the respondents under Section 108 of the Code of Civil Procedure on the 9 of July 1904. The suit was retried; and on the 17 of September 1904 the Court of first instance made a decree in favour of the plaintiffs for Rs. 17,711-7-0. This decree was affirmed by the High Court on the 18 of December 1906. On the 17 of September 1907 the respondents made an application to the Court for refund to them of Rs. 1,804, being the difference between the amount realized by the decree-holders and the amount subsequently decreed by the Court, together with interest and costs. The Court) below has granted the application. Hence this appeal.

(2.) Two contentions have been urged before us--(1) that the remedy of the respondent was a suit and not an application, and (2) that the application is time- barred.

(3.) As regards the first point we think that the respondents were competent to make an application for the refund of the money. The decree originally passed was superseded by the subsequent decree made in 1904. As observed by their Lordships of the Privy Council in Shama Purshad Roy Chowdery V/s. Hurro Purshad Roy Chowdery (1865) 10 Moo. I.A. 203, "if it (the decree") has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and as their Lordships conceive, is recoverable either by summary process or by a new suit or action." The respondents were therefore entitled to apply for a refund of the money and were not bound to bring a separate suit. That they are entitled to the money can admit of no doubt, and the only question is as to the form of the remedy to which they must resort for obtaining relief. The principle of the rulings of this Court in the cases of The Collector of Meerut V/s. Kalka Prasad (1906) I.L.R. 28 All. 665 and Shiam Sundar Lal V/s. Kaisar Zamani Begam (1906) I.L.R. 29 All. 143 applies to this case.