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Anant Baburao Kulkarni Vs. Vyasacharya Madhavacharya Ghalasasi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 138 of 1942
Judge
Reported inAIR1944Bom264; (1944)46BOMLR525
AppellantAnant Baburao Kulkarni
RespondentVyasacharya Madhavacharya Ghalasasi
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 144-joint and several decree against defendants-suit contested by one defendant only-revisional application by such defendant-withdrawal of suit by plaintiff against suck defendant pending application-decretal amount recovered from one of remaining defendants -whether such defendant entitled to refund on withdtawal to suit. ; the plaintiff obtained a decree jointly and severally against defendants nos. 1 to 7 in a suit which was contested by defendant no. 7 alone. pending a revisional application against the decree by defendant no. 7, the plaintiff withdrew the suit as against defendant no. 7 with the permission of the court. meanwhile the plaintiff in execution of his decree recovered the decretal amount from defendant no. 1. defendant no. 1..........with costs consisting of about rs. 55. after the suit was allowed to be withdrawn by the district judge in revision against defendant no. 7, defendant no. 1 filed an application for restitution under section 144 of the civil procedure code alleging that the suit in which the decree was obtained by the plaintiff was withdrawn by him and that therefore he was entitled to refund of the amount recovered from him in execution through court. the trial court granted the application for restitution under the belief that the revisional application was filed by defendant no. 1. the plaintiff appealed to the district court against the order and the learned judge set aside the trial court's order' on the ground that the trial judge was under a misapprehension that the revision application was filed.....
Judgment:

Divatia, J.

1. This appeal arises in execution proceedings of a decree for rent. The facts shortly are that the plaintiff, who is the respondent in this appeal, obtained a decree against the present appellant, who was defendant No. 1 in the suit, and six other persons for arrears of rent consisting of about Rs. 18 for three years with costs and future interest. The suit was contested by defendant No. 7, who was a minor, through his guardian. The other defendants remained absent and did not contest the suit. The decree was a joint and several decree against all the defendants. Defendant No. 7 alone filed a revisional application to the District Court against that decree as it was only open to revision by the District Judge under the provisions of the Dekkhan Agriculturists' Relief Act, 1379. Pending the hearing of that application the plaintiff, who was the opponent in that application, filed an application for the withdrawal of the suit as against defendant No. 7. The District Judge granted the plaintiff's application with liberty to bring another suit against defendant No. 7 on the same cause of action. In the meanwhile, the plaintiff had taken out execution of the decree against defendant No. 1 and recovered the decretal amount with costs consisting of about Rs. 55. After the suit was allowed to be withdrawn by the District Judge in revision against defendant No. 7, defendant No. 1 filed an application for restitution under Section 144 of the Civil Procedure Code alleging that the suit in which the decree was obtained by the plaintiff was withdrawn by him and that therefore he was entitled to refund of the amount recovered from him in execution through Court. The trial Court granted the application for restitution under the belief that the revisional application was filed by defendant No. 1. The plaintiff appealed to the District Court against the order and the learned Judge set aside the trial Court's order' on the ground that the trial Judge was under a misapprehension that the revision application was filed by defendant No. 1. As a matter of fact, it was filed by defendant No. 7 only. He further held that the withdrawal of the suit, which was permitted in revision, was of the suit against defendant No. 7 only and not against all the defendants, with the result that the decree in so far as it was passed against the remaining defendants remained a valid decree even after the suit was allowed to be withdrawn against defendant No. 7. The order of the trial Court was, therefore, set aside, and the application for restitution dismissed.

2. Defendant No. 1 has nowi filed this appeal and Mr. Dharap on his behalf has contended that the suit was allowed to be withdrawn not simply against defendant No. 7 but against all the defendants, because the reason for withdrawal proceeded on a ground which was common to all the defendants, viz. that the defendants were not the plaintiff's tenants but were pot inamdars and not liable to pay rent. It is, however, clear that the plaintiff in his application asked for leave to withdraw from the suit as against defendant No. 7 only and the learned Judge granted the application. He did not say that the suit was allowed to be withdrawn against all the defendants on the ground that the reason for withdrawal was common to all of them. It could not, therefore, in my opinion, be contended that the effect of the order passed by the District Judge was to permit the withdrawal of the suit against all the defendants. In fact the learned Judge could not have passed an order of withdrawal of the suit against all the defendants when the remaining defendants were not parties to the revision application. It is no doubt true that a decree can be reversed or varied in appeal at the instance of somd of the defendants only and the effect of such reversal or variation would be for the benefit of all the persons who are parties to the litigation though not. to the appeal, if the reversal or variation proceeds on a ground common to all of them. But it is difficult to say that an order of permission to withdraw from the suit as against all defendants can be passed in a proceeding to which some of them were not parties. Anyhow, there is no doubt that the order of the learned Judge amounted to permission to the plaintiff to withdraw from the suit against defendant No. 7 alone, and it must, therefore, be taken that the decree, which was already passed against the remaining defendants, was not affected by that order. That being so, the amount recovered by the plaintiff in execution of that decree cannot be refunded to defendant No. 1.

3. It is, however, contended that even though the suit might be deemed to have been withdrawn as against defendant No. 7 only, the plaintiff was not entitled to retain the amount which he recovered in execution from the appellant when he conceded in his application for withdrawal that defendant No. 7 had a one-fourth share in the suit property. It appears that that contention was raised on behalf of defendant No. 7 in the suit itself, but it was overruled. Defendant No. 1 ought to have preferred a revision application against that decree just as defendant No. 7 did on the ground that he was not liable to pay the, rent because he was not a tenant but a pot inamdar and also because defendant No. 7 had a one-fourth share in the property and that the plaintiff was not entitled to recover the whole. But having not taken any steps to set aside the decree against him, defendant No. 1 cannot, in my opinion, take advantage of the circumstance that after the execution was levied against him, the suit against defendant No. 7 was allowed to be withdrawn. If the revisional Court had reversed or varied the decree in favour of all the defendants even though they were not parties to the revision on the ground that such reversal or variation proceeded on a ground common to all, then on the authority of the decision in Gurunath v. Venkatesh I.L.R. (1901) Mad. 426 defendant No. 1 could have applied for restitution. But the District Judge has not reversed or varied the decree against all the defendants. He has only permitted the suit to be withdrawn as against defendant No. 7 only, and that order, in my opinion, would not have the effect of a reversal or variation of the decree against all of them. It has been held by the Madras High Court in Natesa Ayyar v. Annasami Ayyar : AIR1937Bom101 that where a decree has bielen reversed in favour of the appellant only and not against the other persons having a similar interest in the suit, the original decree must be regarded as still in force against the other persons. In my opinion, therefore, in spite of the withdrawal of the suit against defendant No. 7, the original decree passed against defendant No. 1 was not affected in any way by the permission to withdraw the suit as against defendant No. 7. No doubt the power of the Court to allow restitution is not limited to the terms of Section 144 and the Court would have inherent power to direct restitution even though the decrete was not reversed or varied in appeal. But I am not disposed to exercise the inherent power of restitution, because the very ground on which defendant No. 1 wants to take benefit now, viz. that defendant No. 7 had a share in the property, had been taken in the original suit itself and seems to have been rejected. Defendant No. 1 remained absent in the suit. He could have taken steps to have the decree against him set aside in revision just as defendant No. 7 did, but he did nothing of the kind, and he must therefore be taken to have acquiesced in the decree.

4. As a result, therefore, the order of the lower appellate Court is confirmed and the appeal is dismissed with costs.


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