1. This appeal is an offshoot of the well-known Privy Council decision in Bhimabai v. Gurunalhgouda Khcmdappagouda (1932) L.R. 60 I. A. 25 : 35 Bom. L.R. 200, and the short point which arises in this first appeal is, whether under the circumstances of the case the respondent is, under Section 144, Civil Procedure Code, entitled to a refund of certain costs which he had paid to the appellant under the decree made by the trial Court.
2. The facts are not in dispute. The appellant brought a suit in the Dharwar Court against five persons, of whom the respondent was defendant No. 3. The suit was for a declaration that the adoption of defendant No. 2, who was the son of defendant No. 3, by defendant No. 1 was illegal and invalid, and for an injunction restraining the defendants from obstructing him in the enjoyment of the property in dispute. The trial Court 1 made a decree in favour of the appellant with costs against all the defendants. After this decision, the appellant executed the decree for costs against defendant No. 3 and recovered a sum of Rs. 846-13-6 on July 31, 1926, ] from him. Defendants Nos. 1 and 2 appealed to the High Court. To that appeal the respondent was not a party. The High Court dismissed the appeal. Defendants Nos. 1 and 2 then preferred an appeal to their Lordships of the Privy Council, who set aside the decree made by this Court as well as the trial Court and dismissed the appellant's suit with costs throughout. The actual decree made by their Lordships is in these terms :-
The Lords of the Committee in obedience to His Late Majesty's said Order in Council have taken the appeal and humble petition into consideration and having heard Counsel on behalf of the Parties on both sides Their Lordships do this day agree humbly to report to Your Majesty as their opinion that this Appeal ought to be allowed the decree of the High Court of Judicature at Bombay dated the 28th day of February 1928 and the decree of the Court of the First Class Subordinate Judge of Dharwar dated the 8th day of April 1925 set aside and the suit dismissed with costs in both Courts.
And in case Your Majesty should be pleased to approve of this Report then their Lordships do direct that there be paid by the respondent to the appellants their costs of this appeal incurred in the said High Court and the sum of 470-7-10 for their costs thereof incurred in England.
3. After the decision of the Privy Council, defendant No. 3 applied under Section 144 of the Civil Procedure Code for an order that the appellant should refund the costs which he had recovered from him with interest. The learned First Class Subordinate Judge, who heard the application, granted it, and it is from that order that the present appeal is made.
4. It was argued on behalf of the appellant that as defendant No. 3 was not a party to the appeal in the High Court, nor a party to the appeal before their Lordships of the Privy Council, he would not be entitled to any order of restitution under Section 144 of the Code.
5. Section 144 is in these terms :-
(1) Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).
6. In my opinion, the, principle underlying this section is to give to litigants the fullest benefit of a final decree in a litigation and restore to a party on the final determination of his rights what, if any, has in the meanwhile been lost to him or taken away from him by his opponent on the strength of a decree or order which has been subsequently varied or reversed by the superior Court. Before restitution can be made under this section, however, the following conditions must be satisfied : (1) That the applicant must be a party to the litigation which has terminated according to law. (2) That he has either lost something or been deprived of something by reason of the decree or order which has been subsequently varied or reversed. (3) That on the final pronouncement of his rights, he is entitled to the benefit of restitution. The section, it should be noted, does not in terms say that the applicant for restitution must be a party to the proceeding which has resulted in the original decree being reversed or varied; nor does it state that the final decree should provide for a right in him to apply for restitution. All that is necessary is that the final decree must be of such a nature that it would be inequitable to allow his opponent to retain what he has obtained from the former on the strength of a decree which ultimately is held to be erroneous or wrong. It is argued that even if the original decree is reversed in appeal, yet if the applicant for restitution was not a party to the appeal in which it was reversed, he cannot get the benefit of this section. In my opinion, there is no warrant upon the plain meaning of the section for accepting this construction. The only question is whether the applicant was a party to the litigation in the first instance, and, if so, whether the final decision can be said to be in his favour as accepting his contentions made in the suit and declaring his rights. I may in this connection refer to the same principle laiddown in Order XLI, Rule 4, Civil Procedure Code, which, in my opinion, supports the view I am taking. Order XLI, Rule 4, provides that :-
Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
Therefore, if there is an appeal from a decree, even though that appeal is made by one party in which some other party equally interested is not joined, but if the appeal is on a ground common to both of them, then the reversal or the variation in the decree in favour of the appellant would operate for the benefit of the other party, and in that way, therefore, he would be entitled to contend that he was a party to the suit entitled to benefit by way of restitution.
7. It is next argued that it must be shown that the applicant for restitution was entitled to a benefit by way of restitution. I have dealt with this contention, and I think all that it means is, that the final decree is in substance and effect in his favour, so that under it it would be unjust to allow his opponent to retain any advantage which he had obtained by reason of the original decree. In this case, I think it is clear upon the facts that defendant No. 3 is entitled to a benefit by way of restitution. There cannot be the least doubt on the pleadings that the appeal by defendants Nos. 1 and 2 proceeded on a ground which was common to all the defendants, the common question being whether the adoption of defendant No. 2, who was the son of defendant No. 3, by defendant No. 1 was valid, and whether the defendants, including defendant No. 3, should not be restrained by any injunction from interfering with the enjoyment by the plaintiff of the property. The obstruction alleged to have been caused could only have been caused by defendant No. 3 in the right of the adoption of his son and for him, and upon the ground that the plaintiff was not entitled to the property. The question, therefore, must turn, and did turn, upon the validity of the adoption. I think, therefore, there is no substance in the contention.
8. I am supported in the view I am taking by the decision in Ganga Prosad v. Brojo Nath Das (1907) 12 C. W. N. 642. It was held in that case that the expression ' any party ' is not confined to parties to the appeal in which the decree has been reversed or modified. ' It includes every person against whom the decree appealed from was passed, though he was not a party to the appeal, provided the appeal is in effect and substance in favour of such person.' Having regard to the Privy Council decision, it seems to me to be difficult to contend that the appeal in effect and substance was not in favour of defendant No. 3.
9. Mr. Jahagirdar relies on two decisions of the Madras High Court. The first is the case of Kasim Saib V. Luis (1907) 12 C. W. N. 642. It seems to me that the decision went upon the facts of the case, and it is difficult to hold on those facts that the appeal there proceeded on a ground which was common to both the defendants. The suit there was for rent brought by a mortgagee against defendant No. 1 on the ground that he was his tenant, and against defendant No. 2 on the ground that he was setting up a title in himself adverse to the mortgagee. The suit was dismissed in the Court of first instance, but the Court of first appeal passed a decree as prayed in the plaint, and in execution, the principal amount of the rent, which had been paid into Court by defendant No. 1 with the request that it should be paid out to the person entitled to it, was-paid over to the plaintiff. Defendant No. 1 preferred a second appeal against the decree so far as it awarded interest and costs. This second appeal was dismissed. Defendant No. 2 preferred, against the entire decree, a second appeal, which was successful, and the High Court dismissed the suit. Upon this, defendant No. 1 made an application under Section 583 of the old Civil Procedure Code, which corresponds to the present Section 144, for refund of the money paid to the plaintiff. It was held that the applicant was not entitled to the refund claimed. The ratio decidendi there seems to be this, that the applicant was not entitled to restitution as there was no decree whatever in his favour. In other words, the appeal had not been decided on any ground which was common to both the defendants; and indeed on the facts of this case it could hardly be contended that the cause of action against both was one and the same. That against defendant No. 1 was as a tenant, and that against defendant No. 2 was that he was claiming to be the owner of the property in his own right. This, then, being the decision, on the facts of this case, I can hardly consider it to be an authority in favour of the appellant.
10. The second case is Natesa Ayyar V. Annasami Ayyar I.L.R. (1901) Mad. 426. It clearly proceeds upon the final decree in the litigation. In that case a decree was obtained in a District Court against two defendants, by which they were ordered to deliver up certain property and to pay the costs of the suit. These costs were in fact paid by defendant No. 1. An appeal was preferred by both defendants jointly to the High Court, but defendant No. 1 died while it was pending, The legal representative of the deceased defendant was not brought on the record, and when the appeal came on for hearing it was proceeded with be defendant No. 2 on his own behalf. The result was that the High Court reversed the decree of the District Court, but the High Court decree recited that the appeal had been prosecuted on behalf of the surviving defendant alone. The son and legal representative of defendant No. 1 thereafter presented a petition in execution, under the old Section 583, claiming that the whole decree of the District Court had been reversed, and, therefore, he was entitled to restitution of the costs which had been realized by the plaintiff from his father. It was held that the application was incompetent. The judgment proceeds on the ground that it was expressly stated in the High Court decree that the appeal had been prosecuted on behalf of the surviving defendant alone, and, therefore, the decree must be construed as limited to his interests only. It is clear, therefore, that it was only on a construction of the High Court decree in the case that the Court came to the conclusion that the application for restitution was incompetent. Nor is it clear from the facts of the case reported that the decree there proceeded on a ground which was common to both the defendants.
11. If these decisions lay down the proposition which the appellant contends for, then I have no hesitation in saying that I differ from them with all respect to the Judges who decided the cases.
12. In my opinion, therefore, the view taken by the learned First Class Subordinate Judge is correct, and the appeal must be dismissed with costs.