( 107 )
♦Present : Pereira J. and Ennis J.
SINNATAMBY v. KALAMUTTU97—'D. C. Chilaiw, 4,566.
Payment of money in satiefaetion of decree—Application to refund exeeie—Civil Procedure Code, te. 944 and 949.
Defendant paid plaintiff a certain sum of money in satisfactionof the decree. He subsequently discovered that he had paid inexcess of the amount actually due. An application by the defend-ant to compel plaintiff to refund the excess is one that involvedquestions relating to the execution of the decree, and it fell wellwithin the scope of section 344 of the Civil Procedure Code. Themere fact that after such an application and before final order on itplaintiff, with defendant's consent, had satisfaction of the decreecertified under section 349 of the Code did not prejudice thedefendant's right to press his application to a decision.
^pHE facte Appear from the judgment.
J. Grenier, K.C., for appellant.
Sansoni, for respondent.
. Cur. adv. vult.
September 10, 1913. Pereira J.—
In this case it appears that the defendant ptud the plaintiff. acertain sum of money in satisfaction of the decree. He subse-quently discovered that he had paid the plaintiff in excess of the
( 108 )
amount actually due to him on the decree, and on May 7, 1913, he(the defendant) moved for a notice on the plaintiff to show caiisewhy he should not refund Rs. 601.07 “ recovered by him in exgfessof the amount due to him under the decree. ” It is' said that thissum, Rs. 691.07, is not the correct amount paicl in excess, and thatit was so understood by all parties at the hearing Qf the defendant'sapplication. Be that as it may, clearly the motion of. the defendantwas, at the stage of the proceedings in which it was made, a motionthat fell well within the scope of the provision of section 844 of theCivil Procedure Code. It involved questions relating to the *' excu-tion of the decree. ” The notice asked for was allowed and servedon the plaintiff and July 11, 1913, was fixed for the discussions ofthe matter., On that day, as a preliminary step, apparently on themotion of the plaintiff’s proctor, consented to by the defendant’sproctor, payment' of the decree was certified under section 849 ofthe Civil Procedure Code. The moment that was done, the plain-tiff’s proctor contended that the “ case was closed, ” and nothingfurther could be done in it on the defendant’s motion for an orderon the plaintiff to refund the amount paid to him in excess of thesum actually due to him, and the District Judge relying on certaindecisions of the Indian. Courts cited to him disallowed the defend-ant’s motion. The same decisions have been cited to us, and on acareful examination of them, it seems to me that they have noapplication to the peculiar circumstances of the present case. Asobserved already; the defendant’s application, when it was made,was quite in order as an application under section 844 of the CivilProcedure Code. What the Court had to decide was how much wasactually paid by the defendant to the plaintiff in satisfaction of thedecree. In the course of the inquiry the plaintiff’s proctor, as apreliminary step, moved-to certify satisfaction of the* decree. Inthe circumstances in which this motion was made, the order on itamounted to no more than the placing on record of the fact that thedefendant had paid the plaintiff at least the amount of the decree.How much more was paid had yet to be ascertained. Clearly, theintention of the parties—of the defendant's proctor at any rate—wasnot to close the proceedings by certifying satisfaction of the decree.The object^ of the motion and the effect of the order on it are as Ihave explained above.
I would set aside the order appealed from, and remit the case tothe Court below to ascertain how much was paid by the defendantto the plaintiff in excess of the exact amount due to him on thedecree, and for an order on the plaintiff to refund the excess, if any.I think that the defendant should have her costs of appeal, and thatcosts in the Court below should abide the event.
Ennis J.—I agree.
SINNATAMBY v. KALAMUTTU