Innes, Officiating C.J. and Muttusami Ayyar, J.
1. In Suit No. 1157 of 1876 second respondent obtained a money decree against petitioner. On the 17th February 1879 it is alleged first respondent promised to get second respondent to certify satisfaction to the Court that passed the decree, received Rs. 100 from petitioner, and paid it over to the judgment-creditor. Second respondent, however, afterwards executed the decree without certifying the payment, and again collected the amount due under it. Petitioner then sued both the respondents and claimed to recover back, with interest at 12 per cent., the first payment which he had made. The Small Cause Judge of North Malabar dismissed the suit with costs as against both respondents on the ground that no suit could be maintained to recover back money paid in satisfaction of a decree. Petitioner applies for our interference under Section 6221 of the Code of Civil Procedure, and contends that he was entitled to a decree against both respondents or, at all events, against the first respondent. This petition was heard on the 7th July 1881, and stood over, pending the disposal by the Full Bench of Viraraghava v. Subbakka I.L.R. 5 Mad. 397.
2. The present suit falls, like the referred case, to be decided under Act X of 1877 as it stood before the Amendment Act of 1879 was passed. In that case the value of grain delivered and accepted in satisfaction of a decree but not certified to the Court was claimed, and the Full Bench, overruling Aruna-ohella Pillai v. Appavu Pillai 3 M.H.C.R. 188 held that the suit was maintainable; and this suit must follow the referred case. There can also be no doubt that the suit is maintainable against the first respondent upon his express undertaking. Such an undertaking is nowhere forbidden, and, as the first payment is not illegal, though it may not be pleaded in bar of execution, it is clear that the consideration for the undertaking is perfectly legal. We, therefore, think that the decree of the Subordinate Judge must be set aside, and that he should be directed to replace the suit on his file and dispose of it in accordance with law. The costs hitherto incurred by both parties will be costs in the cause.
1 Power to call for record of cases decided by Small Cause Courts or, an appeal, by Subordinate Courts.
[Section 622 : The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appear to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, and may pass such order in the case as the High Court thinks fit.]