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Khemchand Sharma Vs. Padmalochan Panda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 349 of 1972
Judge
Reported inAIR1974Ori29; 39(1973)CLT435
ActsCode of Civil Procedure (CPC), 1908 - Sections 144
AppellantKhemchand Sharma
RespondentPadmalochan Panda
Appellant AdvocateS.C. Ghose, Adv.
Respondent AdvocateS. Misra, Adv. (1), ;R. Behera and ;S.C. Misra, Advs.
DispositionRevision allowed
Cases ReferredB) (Pappu Reddiar v. P. S. V. Rama Natha
Excerpt:
.....ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - since if the decree-holder would ultimately succeed be would be entitled to the costs now with him it would be better in my opinion to pass a conditional order as below: this case is patently inapplicable and clearly distinguishable and, as such, affords no assistance to the opposite party......no. 146 of 1970 from that decree to this court. during pendency of this first appeal, the opposite party, decree-holder filed ex. case no. 8 of 1970 for recovery of the decretal dues and costs. the petitioner prayed for stay of the execution of the decree in the first appeal, and stay was granted subject to the condition that the petitioner deposited costs which the decree-holder was at liberty to withdraw on furnishing security. accordingly, the petitioner deposited rs. 2041.55 p. towards costs and the decree-holder opposite party withdrew the same on furnishing security. the first-appeal was, ultimately, allowed and the case was remanded to the trial court for fresh disposal according to law. the plaintiff-opposite party, thereupon filed an application for leave to appeal to the.....
Judgment:
ORDER

S.K. Ray, J.

1. The opposite party instituted M. S. No. 43 of 1968 for recovery of Rs. 20,000/- from the petitioner. The suit was decreed and the petitioner preferred First Appeal No. 146 of 1970 from that decree to this Court. During pendency of this First Appeal, the opposite party, decree-holder filed Ex. Case No. 8 of 1970 for recovery of the decretal dues and costs. The petitioner prayed for stay of the execution of the decree in the First Appeal, and stay was granted subject to the condition that the petitioner deposited costs which the decree-holder was at liberty to withdraw on furnishing security. Accordingly, the petitioner deposited Rs. 2041.55 p. towards costs and the decree-holder opposite party withdrew the same on furnishing security. The First-Appeal was, ultimately, allowed and the case was remanded to the trial Court for fresh disposal according to law. The plaintiff-opposite party, thereupon filed an application for leave to appeal to the Supreme Court which was also rejected on 1-9-72.

2. The petitioner, therefore, filed an application for restitution under Section 144, C.P.C. in the aforesaid execution case for refund of the costs of Rupees 2,041.55 p. The Subordinate Judge, Bargarh, who disposed of this application for restitution passed the following conditional order:

'But all the same it cannot be disputed that since at present there is no decree against the judgment-debtor, in my opinion the decree-holder ought not to retain the money that he withdrew. Since if the decree-holder would ultimately succeed be would be entitled to the costs now with him it would be better in my opinion to pass a conditional order as below:--

The judgment-debtor would be en-titled to interest on the amount deposited by him and withdrawn by the decree-holder at the rate of 6 per cent 'per annum from 1-9-72 onwards if ultimately he (J. Dr.) succeeds in this Court and if the decree-holder deposits the amount within a week, hence, in which eventuality the judgment-debtor would be at liberty to withdraw the amount. The decree-holder shall not be required to pay any interest. The petition is disposed of as above,'

It is from this order of the Subordinate Judge that the present Civil Revision has been preferred.

3. It is contended that the Subordinate Judge had no jurisdiction to pass the impugned order since law obliged the decree-holder to restitute.

Section 144(1), C.P.C. runs as follows :--

'Where and in so far as a decree or an order 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 order 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.'

This section enshrines the principle of restitution. The Supreme Court in the case of Binayak Swain v. Ramesh Chandra Panigrahi, (AIR 1966 SC 948) has enunciated the doctrine of restitution embodied in the extracted provision of law as follows:--

'The principle of the doctrine of restitution 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 for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from.'

In the instant case in execution of the decree of the trial Court the petitionerpaid Rs. 2,041.55 as costs to the opposite party. That decree was reversed in entirety by the appellate Court which means that nothing was payable under the trial Court's decree. Therefore, law imposes an obligation on the opposite party to make restitution to the petitioner of Rs. 2041.55 which the latter had lost and this obligation arises automatically on the reversal of the erroneous trial Court decree. Thus the decision of the Supreme Court extracted above accords full support to the contention of the petitioner.

4. The learned counsel for the opposite party, on the other hand, contends on the authority of AIR 1953 SC 136 (Lal Bhagwant Singh v. Sri Kishan Das) and of AIR 1963 Mad 45 (FB) (Pappu Reddiar v. P. S. V. Rama Natha lyer) that the Court acting under Section 144, C.P.C. retains jurisdiction to refuse to direct restitution and pass some other order which appears to him to be equitable and just. The conditional order passed in this instant case being one which, in the opinion of the trial court, is equitable and serves the ultimate ends of justice, cannot be impeached as without jurisdiction.

It will be noticed that Lal Bhagwant Singh's case, AIR 1953 SC 136 was noticed in the subsequent Supreme Court case (AIR 1966 SC 948) and explained. It was said that in the facts of that earlier Supreme Court case the position of the parties as it stood under the compromise decree did not substantially alter by reason of Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge. In the view of that distinguishing feature the earlier Supreme Court case would afford no assistance to the opposite party.

The question which arose in Pappu Reddiar's case, AIR 1963 Mad 45 (FB) related to awarding of interest while directing restitution. In that case, the plaintiff obtained a money decree against the defendant and put it into execution. The defendant went up in appeal to the Madras High Court and obtained a stay order. The stay of execution of the trial Court's decree was granted subject to the condition that the appellant deposited the entire amount of costs within a specified time and the decree-holder was given liberty to withdraw the same only on furnishing security. The plaintiff-decree-holder, however, did not withdraw the cost and it continued to remain in court. Ultimately the appeal of the defendant in High Court was allowed in part as a result of which the defendant was found only liable in a sum of Rs. 562/- and the costs payable was proportionately reduced to Rs. 108-9-5. In such circumstances, the question mooted was whether the defendant was entitled to interest on the sum of money which he had deposited in court to answer a decree which the decree-holder was unable or unwilling to withdraw on account of a restriction placed on the unconditional withdrawal of the same as a valid claim in restitution. In the context of the peculiar facts of this case it was said that the granting of restitution under Section 144, C.P.C. should be consistent with justice to both the parties. This case is patently inapplicable and clearly distinguishable and, as such, affords no assistance to the opposite party.

5. For the aforesaid reason, I am of opinion that the Subordinate Judge has wrongly passed a conditional order, which he had no jurisdiction to pass under Section 144, C.P.C. That order is accordingly set aside. He is directed to take further steps to compel re-payment of the costs which


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