Patanjali Sastri, J.
1. The facts giving rise to these appeals may be briefly stated. The plaintiff who is the appellant here brought a suit, O.S. No. 70 of 1934, on the file of the District Munsiff's Court of Periyakulam, on a promissory note executed by the defendant's father and obtained a decree for Rs. 3,000 with interest and costs on the 28th February, 1935. The defendants appealed in A.S. No. 35 of 1935 to the Court of the Subordinate Judge of Dindigul, and that Court set aside the decree and remanded the case for fresh disposal. This was on the 11th March, 1936., In the meantime, the plaintiff realised in execution of the decree of the trial Court Rs. 1,750 on various dates. An appeal was preferred to this Court from the order of remand as a result of which the order was set aside and this Court restored the decree of the trial Court subject however to the reservation that the application of the defendants for relief under the Madras Agriculturists' Relief Act should be enquired into by the trial Court and the decree modified according to the result of that enquiry.
2. Both parties here have proceeded on the footing that the judgment of this Court contained such a reservation which was also duly incorporated in the decree. The decree of this Court was passed on the 12th August, 1938. Meanwhile, in October 1936, the defendants who succeeded in the lower appellate Court applied for restitution of the amount realised by the plaintiff in execution of the decree of the trial Court and got back the sum of Rs. 1,750. After the decree of the High Court two proceedings were instituted in the trial Court which have led to these appeals one by the plaintiff M.P. No. 394 of 1939 applying, in his turn, for restitution of the amount which the defendants had got back when the decree of the first Court was set aside. The other petition was filed by the defendants in I.A. No. 531 of 1939 for relief under Madras Act IV of 1938 in pursuance of the reservation contained in the High Court's decree. Both these petitions were disposed of together by the learned District Munsiff. He allowed the application of the decree-holder for restitution, and treating the amount of Rs. 1,750 as having been already appropriated, scaled down the debt accordingly. The defendants appealed to the lower appellate Court contending that the amount of Rs. 1,750 which the District Munsiff directed to be paid by way of restitution to the plaintiff in pursuance of the High Court's decree should not be treated as having been appropriated towards interest as they got back the amount after the order of the lower appellate Court and that in fact no restitution should have been ordered at all as. the High Court decree directed the application for relief under Act IV of 1938 to be enquired int6 before finally determining the defendants' liability to the plaintiff. The learned Subordinate Judge accepted these contentions and scaled down the decree on the-footing that no payment could in the circumstances of the case be deemed to have been made before the Act came into force, in respect of which the plaintiff could have exercised his right of appropriation. In that view he dismissed the plaintiff application for restitution M.P. No. 394 of 1939 The appeal C.M.S.A. No. 13 of 1941 has been preferred against the order and S.A. No. 593 of 1942 has been preferred against the decree as amended under Madras Act lV of 1938, the plaintiff being the appellant in both the cashes.
3. It is argued for the appellant by Mr. Rajah Aiyar that the High Court having set aside the remand order and restored the decree of the trial Court the amounts realised in execution of that decree during the pendency of the appeal by the defendants in the lower appellate Court should be deemed to have been finally appropriated as part satisfaction of the decree had been recorded when they were realised and that decree having been restored by the High Court, the part satisfaction would stand though the decree was meanwhile set aside by the lower appellate Court. It was further argued that, on the passing of the High Court's decree, the plaintiff became entitled by way of restitution to Rs. 1,750, with interest till the date of that decree, the said sum with interest till the said date forming the principal of a new liability which arose only in pursuance of the decree of the High Court. It is unnecessary to consider on the facts of this case whether after the High Court decree the plaintiff would be entitled to claim any restitution in respect of the amount which was recovered from the defendants originally, but which was subsequently got back by the defendants, or whether the plaintiff's only right was to execute the decree of the trial Court. Even assuming that the plaintiff would be entitled to such restitution, the claim could obviously arise only when a decree is finally passed in pursuance of the order of the High Court, that is to say, after the application of the defendants for relief under the Act is enquired into and the quantum of the defendants' liability to the plaintiff is finally ascertained. Till then there can be no room for such claim for the simple reason that no decree finally determining the amount of the defendants' liability to the plaintiff has come into existence. As for Mr. Rajah Aiyar's contention that the amounts realised during the pendency of the appeal in the lower appellate Court should be deemed to have been finally appropriated towards interest and the balance only towards principal by reason of the Court having recorded part satisfaction, it seems to me the contention cannot be accepted, because these sums were realised by process of law when the defendants were disputing the liability in the appellate Court, having preferred an appeal from the decree of the trial Court. There was no payment voluntarily made by them towards the debt in respect of which the creditor's right of appropriation could arise at that stage, and the amount realised having been got back by the defendants in pursuance of the reversal of that decree by the appellate Court the position simply is that no payment by the debtor towards his liability to the plaintiff can be deemed to have been made at all, and no question of appropriation can arise. It follows that the order made by the lower appellate Court is correct and these appeals should be dismissed with costs. Advocate's fee only in S.A. No. 593 of 1942.
4. Leave to appeal is refused.