1. Plaintiff sued to recover from the defendant Rs. 72-6-5 (Rs. 55-0-0 principal and Bs. 17-6-5 interest).
2. It was alleged in the plaint that the defendant obtained a decree against the plaintiff for Es. 69-11-0 on 16th December 1897 in S.C.S. No. 684 of 1897, that in February 1901, an agreement was entered into between himself and the defendant to the effect that Rs. 55-0-0 were to be paid in full satisfaction of the decree debt and the balance was to be foregone and that defendant should certify full satisfaction of the decree to the Court, soon after the payment of the said sum of Rs. 55 by the plaintiff. It was further stated in the plaint, that the plaintiff paid the sum of Rs. 55 at once, but the defendant did not certify satisfaction of the decree as agreed to; on the contrary he applied for execution of the decree on 23 November 1903 and a notice under Section 248, was received by the plaintiff on 3rd December 1903 and that the cause of action for this suit arose on that date. Plaintiff, therefore, now seeks to recover back the Sum of Rs. 55 paid by him with Rs. 17-6-5 interest thereon.
3. The defendant denied the alleged adjustment and payment and pleaded inter alia that there was no cause of action for the suit, because the decree was not yet executed and no money was realized from the plaintiff in execution.
4. The District Munsiff was of opinion that the suit was maintainable.
5. The Sub-Judge in appeal was of opinion that the suit was not maintainable.
6. The Sub-Judge said : 'Plaintiff has no right to recover back the plaint sum, because it was paid in discharge of a debt actually due by him; Section 72 Indian Contract Act, does not apply because the money was not paid by 'mistake or, under coercion.'. Nor can it be said that the consideration for the payment of the sum in question by the plaintiff has failed. This is not a case in which plaintiff has the option of treating the contract as broken as observed by the District Munsif, and even if it, were so, the plaintiff, would only be entitled to compensation for the breach and it is impossible to say that he had incurred any damages unless and until the money is paid by or realized from him a second time.
7. The defendant has merely applied for execution but he may not execute the decree at all; by mere application for execution he derived no benefit, nor had the plaintiff incurred any loss. It may be that before the defendant seriously attempts to recover the decree debt again, plaintiff may become insolvent and the defendant may be able to recover nothing.
8. The case would be different if there was an agreement on the part of the defendant to pay back the sum to the plaintiff, if the payment were not certified to the Court, but no such agreement is alleged for the plaintiff.
9. Plaintiff is not without other remedy as he may bring a suit for a declaration that the decree has been completely satisfied, See Paromanand Khasnabish v. Kheboo Paramanick I.L.R. (1884) 10 C. 354 and also, if necessary, for an injunction restraining the defendant from executing the decree.
10. The decisions in K. Viraraghava v. Subbakka I.L.R. (1882) 5 M. 397, Mallamma v. Venkappa I.L.R. (1884) 8 M. 277, Krishnasami Ayyangar v. Ranga Ayyangar I.L.R. (1896) 20. M. 369, Musutti v. Sheikharan I.L.R. (1882) 6 M. 41, Shadi v. Gargasahai I.L.R. (1881) 3 All. 538 seem to be cases where the decree was completely executed, after previous adjustment or payment which was not certified. It does not appear from the report of the decision in Periyatambi Udayan v. Vellaya Gounden I.L.R. (1887) 21 M. 409 that the decree was not executed a second time and therefore it is not on all fours with the case.
11. There are no direct decisions on the point in question and I entertain reasonable doubt. The respondent's vakil requests me to refer the point for the decision of the Honourable the Judges of the High Court.
12. The question referred was:
Whether the plaintiff has cause of action for this suit and can recover back the sum paid in discharge of a decree-debt due to the defendant although he has not executed the decree and recovered the sum again from the plaintiff?