006-NLR-NLR-V-35-ASIRIWATHAN-v.-MUDALIHAMY–et-al.pdf
28
DRIEBERG J.—Asiriwathan v. Mudalihamy.
1932Present: Drieberg and Akbar JJ.
ASIRIWATHAN v, MUDALIHAMY et al.
12—D. C. (Inty.) Ratnapura, 4,664.
Execution of decree—Money paid in satisfaction—Decree reversed in appeal—Restitution of benefits—Civil Procedure Code, s. 777.
Where a decree is reversed in appeal, the successful party is entitledto restitution of money paid in process of execution of the erroneousdecree of the Court of first instance.
An application for the purpose may be made under section 777 of theCivil Procedure Code.
PPEAL from an order of the District Judge of Ratnapura.
Croos da Brera, for plaintiff, appellant.
July 20, 1932. Drieberg J.—
The appellant brought this action against the defendants to recover asum of Rs. 4,827.93 which he said was due to him as his share of gemsobtained from a certain land and for an accounting. On May 7, 1928,
» 11879) 11 L. T. 376.» 11911) 17 N. L. R. 316.
DRIEBERG J.—Asirivoathan v. Mudalihamy.
29
an agreement not very clearly worded, was entered into between theappellant and the defendants, the second and third of whom arerespondents to this appeal, that the action was to be withdrawn and thatthe first to the fourth defendants were to pay the appellant Rs. 12,603.60.
On the day of trial, June 11, 1928, the defendants were absent. The ■trial Judge proceeded ex parte, and, after examining the appellant, enteredjudgment for the appellant on June 11, 1928, in terms of the agreementfor Rs. 12,603.60.
On July 19, 1928, the appellant applied for execution which was allowed;at that time there was no appeal from the judgment. Before the return-able date for the writ the first respondent moved that the judgment bevacated and that execution be stayed pending • the inquiry. This wasallowed but later the Court refused to vacate the judgment and writ wasre-issued on January 25, 1929. On January 28, 1929, the first respondentappealed against the order refrsing to vacate judgment.
In the interval the appellant proceeded with execution. On March 11,1929, the first respondent moved that writ should not re-issue without theappellant giving security as provided by section 763 of the Civil ProcedureCode; on March 14, 1929, security was given in one surety for Rs. 500 andwrit re-issued. Property was seized and a payment of Rs. 3,000 wasmade to the appellant which was certified on June 5, 1929. On July 17,1929, the Supreme Court set aside the decree and sent the case back inorder that the present appellant might move that judgment be enteredin terms of the agreement. Apparently the Court thought the trial Judgehad adopted a wrong procedure in entering judgment according to theagreement on the day the trial was fixed merely for ex parte hearing.Other steps were taken in the action since that date and the case has beenfixed for trial. On September 12, 1931, the respondents moved that theappellant be ordered to bring into Court the sum of Rs. 3,000 paid tohim by them on the ground that the decree under which it was "paid hadbeen thereafter set aside. The learned District Judge made orderdirecting the appellant to bring into Court the sum of Rs. 3,000 but thatthe money could not be drawn until the trial was concluded. He heldthat he had power under section 839 of the Civil Procedure Code to makesuch an order. The appellant in the Court below took the objection that theapplication to the Court should have been by way pf petition and affidavitunder Chapter 24 of the Code and not by motion, but he also contendedthat the respondents should have claimed this amount in a separate action.
It was not necessary to resort to section 839 of the Civil ProcedureCode, for there is provision made in the Code for such a situation as this insection 777 which provides that “ when a party entitled to any benefit(by way of restitution or otherwise) under a decree passed in an appealunder this chapter desires to obtain execution of the same, he shall applyto the Court which passed the decree against which the appeal was pre-ferred; and such Court shall proceed to execute the decree passed inappeal, according to the rules hereinbefore prescribed for the executionof decrees in an action. ” This section is based on section 583 of the oldIndian Code. The inadequacy of this section to meet all cases whererestitution was indicated was realized, and in the new Indian Codesection 144 was substituted for section 583.
30
DRXEBERG J.—Asiritoaihan v. MvdaUhamy.
It has been held by the Courts in India that the procedure provided bysection 583 is not confined to cases where the restitution desired isprovided for by the decree but that a decree of reversal by an appellatecourt contains, by necessary implication, a direction to the Court belowto cause restitution to be made of all the benefits of which the successfulparty in the appeal was deprived by the enforcement of the erroneousdecree of the Court of first instance (Parbhu Dayal v. Alt Ahman ’).The appellant’s motion to have judgment entered in terms of theagreement was dismissed on November 18, 1929, and his appeal fromthis order was dismissed on February 20, 1930. The case has now beenfixed for trial.
The decree in favour of the appellant having been set aside, can theappellant show any good reason why he should not restore what heobtained by the enforcement of that decree? The appellant does notsay that he is not liable to do so but he contends that he should not becompelled to pay before the final decision of the action for that mightterminate in his favour. The appellant complains that the long delay inclaiming this money has made his position very difficult as his financialposition has altered since. This complaint is not without reason. Thepayment was made some time before June 5, 1929. One July 17, 1929,the Supreme Court set aside the decree of June 11, 1928, in the enforce-ment of which this payment was made and it was then open to therespondents to move to recover the money paid, yet they took no actionuntil September 12, 1931, but a decree-holder who executes a decreeagainst which an appeal is pending should be prepared for the inevitableconsequences following on the reversal of the decree.
It appears to me that the only one entitled to this relief is the first,respondent; the appeal on which the decree was set aside was by himalone and, though the reversal of it benefited the other defendants aswell, I do not think they are entitled in the circumstances of the case tothis relief at this stage; payments are alleged to have been made byothers and I find that one payment of Rs. 4,500 was certified on June i2,1928. The application for repayment of the Rs. '3,000 is made by thefirst respondent and the second respondent; they do not say how mucheach of them paid, but the appellant in his petition of appeal says thateach paid him Rs. 1,500.
The first respondent alone is entitled to relief under section 777 and tothe extent only of so much of the Rs. 3,000 as was paid by him. I setaside the order appealed from and direct that the first respondent beallowed to proceed under section 777 to the extent of so much'of the saidsum as he paid; if the parties are not in agreement on this point theCourt will determine the amount after inquiry.
The procedure adopted is not in order. The correct course is to applyfor execution; it is in fact the decree of the Appeal Court which it is soughtto enforce, and all further proceedings will continue as in the execution ofa decree to pay money, but any sum paid of realized will remain in Courtuntil the final determination of the action.
I make no order as regards the costs of this appeal.
Akbar J.—I agree.
> 32 Calcutta 78.