1. The facts out of which these two appeals arise are that in some land acquisition cases in Thana the award originally made by the land acquisition officer was greatly increased by the District Court. The High Court on appeal set aside the decree of the District Court and reduced the compensation to that awarded by the acquiring officer. It so happened that in the interval between these two dates the amount awarded by the District Court had been paid not to the claimant but to a nominee of his, mortgagee, respondent-Mulji. The person receiving the money executed a bond binding himself to repay it. There was no mention of interest in this bond. The amount was repaid and subsequently Government presented two applications to recover interest from the person executing the bond. There were two applications because the amount was paid in two sums, They were disposed of by one order by the District Judge of Thana, but there are two separate appeals.
2. The District Judge held that the liability under the bond was expressly limited to the amount which Mulji had already paid. He also held that the matter was res judicata by reason of an order made in the case of Amritlal the surety to the extent of the other one-fourth share, and it was also barred by limitation. Government have appealed in both these applications.
3. The learned Government Pleader has contended that the matter must be determined by Order XLI, Rule 6, Section 144 and Section 145 of the Code of Civil Procedure, and that it is only under Order XLI, Rule 6, that an order for security could be made.
4. The facts, so far as they are relevant to the present case, are that the khot who claimed compensation had a co-sharer to the extent of fourannas in the khoti of Kanjoor, and the remaining three-fourths belonging to himself was mortgaged to Mulji Haridas and the enhanced compensation was paid by the Court to Mulji in respect of his three-fourths share. It is not clear how it was paid to him, but it may be taken that he was the nominee of the decree-holder. I read Order XLI, Rule 6, as applying only to parties to the suit. Section 44 which refers to restitution refers to placing 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 'or the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal, Section 144, however, refers only to parties to the suit, and it has been held by the Privy Council in Raghubar Singh v. Jai Indra, Bahadur Singh (1919) L.R 40 IndAp 228 : 22 Bom. L.R. 521 not even to refer to sureties. As a matter of fact in the present case there is no question whatever of the present respondent Mulji being a surety. He is not a surety for the purposes of the decree as the bond itself will show, that is to Bay, he is not a surety who undertakes to repay in the event of his principal not doing so. Nor is he in any sense a representative of the interest of the decree-holder, that is the khot. What happened was merely that as he was entitled as mortgagee to the compensation money, the decree-holder requested that the amount should be paid over to him, just as he might ask that it may be paid into a bank. That does not make him a representative of the decree-holder. Nor in my opinion was there any privity between him and the judgment-debtor-Government. Neither Section 145 nor Section 146 will have any application.
5. It has ultimately been conceded by the learned Government Pleader that the claim against Mulji must be founded on the bond itself. The term of the bond are perfectly clear. By it, Exhibit 11, Mulji binds himself that 'if Government prefers an appeal against the aforesaid reference and if the Court orders any amount to be repaid then I myself and my heirs, administrators, executors and assigns are to remain and shall remain liable to pay to this Court to the extent of Rs. 48,048-0-11 only.' There is no provision whatever in this document for interest. He was not the representative of the decree-holder or a party to the suit, and therefore Section 144 of the Civil Procedure Code can have no application to his case. Nor was he a surety for a decree-holder, and therefore Section 145 also will not apply. Nor does he claim under the decree-holder and Section 146 does not seem to apply. As the learned Judge has pointed out, if the payment had been made to the decree-holder direct and the decree-holder thereafter paid it to the present respondent there could be no possible claim against him by Government. I agree, therefore, with the view taken by the learned District Judge that the only liability of Mulji to make restitution was under the bond, which expressly does not provide for interest, and being a security bond must be strictly construed.
6. That is sufficient for the disposal of the appeals. The other two points raised by the District Judge are not quite clear. The first point is that the matter is barred by res judicata because in the course of the execution proceedings in this decree a similar application was made for recovery of interest from Amritlal to whom a similar payment had been made, and it was held that Amritlal was not liable to pay interest, and the Judge says that having made Mulji a party to this darkhast the order with regard to Amritlal will govern his case also. This will be all very well if there was an order in the case of Mulji. There being a number of darkhasts in these proceedings, although the learned Counsel and the solicitor who appear for the respondent have exercised much industry, they are unable to find any definite order. The only order I can find is an order of April 11, 1928. But there is no order regarding the liability of Mulji to pay interest, The present respondent naked for the attachment of his property to be raised and the order was: ' In view of the admission of the Government Pleader in Exhibit 12 the application is granted. No order as to costs.' It may be assumed that the learned Judge intended to convey that no liability for interest rested on the present respondent. But he has made no such order although he has made one in the case of Amritlal. I do not think a matter can be held to be barred by resjudicata which is not expressly decided. However, that point is very small and is of no importance now in view of the finding on the first issue.
7. As regards limitation, it has been argued by the learned Counsel for the respondent that inasmuch as Mulji is not a representative of the decree-holder, the khot, this must be regarded as an independent contract between Government and the respondent as has been practically held in the earlier part of the judgment, the rights and liabilities of the parties being determined by the bond. Therefore, the respondent not being a party to the suit the application in execution against him is not competent, though a separate suit might lie. In view of the fact that the High Court decree was passed in 1925 the date of it being September 21, 1925, the application of November 28, 1928, would be out of time even if allowed to be treated as a suit.
8. In these circumstances I agree with the finding of the lower Court that the present application should be dismissed, and the appeals will be dismissed with costs.
9. I agree.