S.M.N. Raina, J.
1. This is a second appeal arising out of proceedings under Section 144 of the Code of Civil Procedure.
2. The plaintiff-appellant purchase ed the house in suit from Harnarayan on 27-12-1961. At the time of purchase it was in occupation of Bharat Bhushan respondent No. 2, Mst. Kamlesh Kumari respondent No. 1, and a servant of Bharat Bhushan. The plaintiff filed a suit for eviction and arrears of rent against Bharat Bhushan and others. The suit was decreed by the trial Court. Smt. Kamlesh Kumari (respondent No. 1) preferred an appeal against the decision of the trial Court and also filed an application for stay of execution of the decree of the trial Court during the pendency of the appeal. The appellate court granted stay on the condition that the decretal costs and rent found jointly due against Smt. Kamlesh Kumari and Bharat Bhushan shall be deposited by her and that she shall continue to deposit mesne profits at the rate of Rs. 100/- till the disposal of the appeal. The appeal was ultimately allowed. The decree of the trial Court was set aside and the case was remanded for a fresh decision. It is not disputed that the claim of the plaintiff against Smt. Kamlesh Kumari was ultimately dismissed by the trial Court and the said decision became final inasmuch as no appeal was preferred against it. It is also not disputed that Smt. Kamlesh Kumari had to pay a sum of Rs. 6779.75 P. under the original decree of the trial Court in pursuance of the stay order. After the said decree was set aside by the appellate Court Smt. Kamlesh Kumari filed an application for restitution of the amount. The application was allowed by the trial Court and an appeal preferred by the plaintiff was dismissed by the Additional District Judge. Being aggrieved thereby the plaintiff-appellant has preferred this second appeal.
3. The main contention of Shri B. D. Gupta, learned counsel for the appellant is that even though the matter may strictly fall within the purview of Section 144 of the Code of Civil Procedure no order for restitution should have been passed because it is not in consonance with justice and circumstances of this case.
4. The principle underlying the doctrine of restitution which is embodied in Section 144. Civil P. C. is that on the reversal of a decree the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party so that whatever has been done under the erroneous decree may be undone and the parties may be restored to the position which they enjoyed before passing of such a decree. In applying this doctrine, however, the interests of justice must be kept in view.
5. In Lal Bhagwantsingh v. Sri Kishen Das, AIR 1953 SC 136 their Lordships while dealing with the question of restitution under Section 144. Civil P. C. observed in paragraph 14 that the principle underlying the doctrine of restitution is that on the reversal of a 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 and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case.
6. In Pappu Reddiar v. P. S. V. R. Ramanatha Iyer, AIR 1963 Mad 45 (FB) a Full Bench of the Madras High Court held that granting of restitution under Section 144, Civil P. C. should be consistent with justice to both the parties. A similar view was expressed by that Court in S. Chokalingam Asari v. N. S. Krishna Iyer, AIR 1964 Mad 404.
7. It is, therefore, clear that the Court must take into account the facts and circumstances of the case before ordering restitution and it may refuse restitution where it does not appear to be in consonance with the real and substantial justice of the case.
8. We have to examine the question of restitution in the light of the principles enunciated above. It is no doubt true that the respondent Smt. Kamlesh Kumari was required to pay the amount in question in pursuance of the stay order on account of the decree of the trial Court which was subsequently reversed and as such she is entitled prima facie to claim restitution. But we must bear in mind that it is the case of Smt. Kamlesh Kumari herself that she was a direct tenant of the plaintiff on a monthly rent of Rs. 80/-, as such it appears that it would not be proper to order restitution in respect of the rent payable by her at least in respect of the period for which her liability to pay is not in dispute.
9. In this connection it would be pertinent to mention that the plaintiff has filed two separate suits against Smt. Kamlesh Kumari. One is for arrears of rent for the period from 27-12-1961 to 26-12-1964. The amount claimed is Rs. 2880/-. Another suit has been filed against her for eviction as well as arrears of rent for the period from 27-12-1964 to 1-11-1971. So far as the amount of Rs. 2,880/- which has been claimed by the plaintiff as arrears of rent in the earlier suit. Shri Batham, learned counsel for the respondent Smt. Kamlesh Kumari frankly conceded that he had no objection to the restitution for this amount being disallowed subject to the condition that the plaintiff gives credit for this amount in the suit for arrears of rent claimed by him. Shri Gupta, learned Counsel for the appellant, stated that the appellant is willing to give credit for the said amount in case no restitution is allowed in respect of this amount.
10. As for the rest of the amount the position is slightly different. In the second suit filed by the plaintiff the question of limitation has been raised and it has been urged that the claim for arrears of rent due for the period more than three years before the institution of the suit is barred by time. It was also stated that Smt. Kamlesh Kumari has already deposited the full amount due from her which is within limitation in Court in that suit. In these circumstances the order of restitution for the rest of the amount must stand even though Smt. Kamlesh Kumari is admittedly a tenant of the plaintiff.
11. The appeal, is, therefore, partly allowed and the restitution for the amount of Rs. 2,880/- is disallowed. As for the balance of the amount the orders of the lower Courts shall stand. I make no order as to costs in this appeal in the circumstances of this case.