1. This is an appeal against an order of the District Judge directing the appellant, who was plaintiff in the suit, to refund to the respondent, who was the 1st defendant, money paid by the latter on account of rent admittedly due on the laud of which respondent was tenant. The land belongs to the Puthige Mutt at Udipi, and had been mortgaged to appellant by Sumatindra Swami as trustee of the Mutt. The validity of Sumatindra's appointment to the trusteeship was under litigation at the time of the mortgage, and was eventually decided against him. The rent in question was claimed also by Sudindra Swami, who was eventually declared the rightful trustee. He was consequently included as 2nd defendant in the suit. The money was deposited in court by the respondent with the request that it might be paid to whichever of the claimants might be found entitled to it. The Court of First Instance dismissed the plaintiff's i.e., appellant's suit but on appeal that decision was reversed, and thereupon the money was paid to appellant. But in second appeal preferred by Sudindra Swami, the 2nd defendant in the suit, this Court reversed the decree of the Lower Appellate Court and restored that of the District Munsif. Hence the application out of which the present appeal has arisen, for restitution to 1st defendant of the money wrongly paid to plaintiff. The District Court has upheld the order of the District Munsif in favor of the respondent, and from that order this second appeal is preferred by the plaintiff.
2. It is contended on behalf of appellant that respondent is not entitled to restitution under Section 583 of the Code of Civil Procedure as there is no decree in his favor, he not having been an appellant, but merely a respondent '(jointly with the present appellant) in the Second Appeal No. 657 of 1889, in which was passed this Court's decree dismissing the present appellant's suit ; whereas the appeal (Second Appeal No. 778 of 1889) preferred by this respondent from the same decree (which appeal was dismissed) related only to interest and costs.
3. The contention on behalf of appellant is that the respondent 'was not declared entitled to any benefit under any decree so as to claim restitution.' I do not understand this contention to mean that restitution can only be made under Section 583 of the Code in cases in which it is expressly directed by the decree ; such a contention would clearly be barred : Cf. Balvantrav Oze v. Sadrudin I. L. R. 13 B 435 I understand the contention on behalf of appellant to be that respondent is not entitled to the restitution sought, as there is no decree whatever in his favor. This contention is, I think, valid. The decree in Second Appeal No. 657 of 1889 was a decree in favor of the 2nd defendant in that suit ; and if as the result of that decree it happens that the money was wrongly paid to the present appellant, it is for that 2nd defendant to ask the court to get it back and pay it to himself as the party entitled to the same, it having been paid into court by this respondent for payment to whichever of the two claimants before it in the same suit might be found entitled to the same.
4. Respondent having paid the money into court in a suit to which both the claimants were parties, is fully discharged from all liability and in the absence of a decree in his favor, he is entitled to no refund from the appellant. I would therefore allow the appeal and, setting aside the order of both the courts below, dismiss respondent's application with costs throughout.
Muthusami Aiyar, J.
5. I agree. The payment was not made into court under Chapter XXIII of the Code of Civil Procedure, for such payment presupposes an admission of the plaintiff's claim to the extent of the payment. In the present case the payment was made with the request that the money should be paid out to the party really entitled to the rent. It is a payment made under the impression that the suit though brought by the plaintiff might be treated as being in the nature of an interpleader proceeding under Section 490, Civil Procedure Code. The Munsif was wrong in ordering the money to be paid out to the plaintiff without security before the decision of the second appeal, and the party entitled to put him in motion in order to rectify this error and to call for a refund is the 2nd defendant. The 1st defendant is therefore not entitled to ask for a refund and I concur in the order proposed by my learned colleague.