Norman Macleod, Kt., C.J.
1. The facts are correctly stated in the judgment of the lower Court. The plaintiff having got a decree against the 1st and the 2nd defendants in the suit for the return of the earnest money and damages for breach of contract proceeded to appeal on the ground that he was entitled to specific performance of the contract against the defendant No 3 Pending the appeal the 1st defendant paid into Court, as he was entitled to do, the amount which had been awarded against defendants Nos. 1 and 2. The plaintiff continued the appeal and was successful Consequently these defendants were entitled to get their money back.
2. So defendants Nos 1 and 2 filed Darkhast No. 283 of 1922 for restitution, claiming interest on the money which remained in Court until the plaintiff's Darkhast No. 172 of 1923 The plaintiff says that he acquired no benefit from the money which had been paid into Court, rind therefore he was not liable to pay interest demanded by the defendant No. 1. The learned trial Judge said :-
Then it is said that no benefit was derived by the plaintiff by the deposit of the decretal money in Court. The answer to this lies on its very surface For the principle of the doctrine of restitution is that on the reversal of the judgment, the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost. I. L. R, 23 Mad. 308.
It was the pleasure of the plaintiff not to take the available money in pursuance of the decree of the trial Court, but this act has caused loss to defendant, and when the Hon'ble High Court set aside the claim for damages, the parties need to be relegated to their original position.
Under the circumstances, I think that it was incumbent on the plaintiff, when informed, to take the money, otherwise the amount was laying in Court at his risk, entailing all the natural consequences in the event of a refund or restitution, as provided for under section 144, for the wrongful loss thus caused by him to the defendant. In any case by filing Darkhast 172 of 1923 on 10th March 1923, which is dismissed this day, ho caused the detention of Rs. 3,831-4-0 in order to secure satisfaction of his Darkhast claim.
3. We think the case for the defendants might have been put rather stronger, because the plaintiff retained the benefit of the payment into Court made by the defendants during the whole time when the appeal was pending, and even when the appeal had been heard he sought to take advantage in the Darkhast referred to of the payment into Court He cannot therefore now be allowed to say that he derived no benefit from that payment. But even if he derived no benefit, still, the onus lay upon him, if he wanted to be relieved of the risk of any such application as has now been made, to give notice to the defendant to take his money out. He has had the advantage of the money lying in Court until the appeal was heard, and that would be a sufficient advantage to enable defendant No. 1 to succeed, The appeal, therefore, is dismissed with costs.