Panchapakesa Ayyar, J.
1. There are two points for determination in this second appeal. The first is whether the lower appellate Court was right in holding that the petitioner, conceding that he is entitled to restitution of any amount owing to the-alleged variation of the decree in O.S. No. 256 of 1937 could get the decree transferred from the Parappanangudi District Munsiff Court, which passed the decree, to the District Munsiff's Court, Calicut, for getting such restitution. The second is whether in fact, the decree in O.S. No. 256 of 1937 against the appellant was varied, and he was entitled to restitution of the original decree amount which he-had deposited. The first is a question of law, and the other is a mixed question of law and fact.
2. By consent of both sides the question of law has been argued here. I am unable to agree with the finding of the lower appellate Court that a person entitled to restitution, by virtue of a variation in the decree amount, due to scaling down under the Madras Agriculturists' Relief Act, will not be entitled to get the decree transferred to another Court for execution under Section 39 of the Civil Procedure Code. The law has always proceeded on the footing that any person entitled to recover any amount under a decree will be in the position of a decree-holder to that extent. ' Decree-holder ' has been defined in Section 2(3) of the Civil Procedure Code
as any person in whose favour a decree has been passed or an order capable of execution has been made.
So, in my opinion, a defendant entitled to recover costs from the plaintiff in a suit which is dismissed will be a 'decree-holder' and can get the decree transferred to another Court to recover his costs. So too, a person entitled to restitution (under a decree) by a variation of the decree owing to the scaling down under the Madras Agriculturists' Relief Act, as there is an order for restitution capable of being, executed. Section 39 (1), Civil Procedure Code, will, in my opinion, therefore, enable such a person also to get a transfer of the decree to another Court for executing it and getting restitution. Mr. Kuttikrishna Menon, the learned Counsel for the respondents, was unable to convince me that in such a case a person entitled to restitution cannot get the decree transferred to another Court. I have not also been referred by him to any ruling which prohibits such a transfer, and, as stated before, unless such a transfer of the decree is allowed, many persons granted rights to recover amounts under decrees can never recover them. Public policy also, is, therefore, in consonance with the above view.
3. Regarding the second point, the parties are not agreed. Mr. Kutikrishna Menon, for the respondents, says that there was in fact no variation of the decree in O.S. No. 256 of 1937 passed against the appellant, whereas the learned Counsel for the appellant urged that there was a variation of a fundamental nature, namely, the holding by the District Munsiff, Parappanangudi, on a remand by the District Court, Calicut, that nothing was due under the decree owing to the operation of the Madras Agriculturists' Relief Act. Of course, the learned Government Pleader urged that, as the decree itself was passed after the passing of the Madras Agriculturists' Relief Act, there could not have been any scaling down, under that Act, of the amount under such a decree. But, as urged by the learned Counsel for the appellant, if the District Munsiff, Parappanangudi, on remand by the District Court of South Malabar, varied the decree, and held that nothing was due 'nder it, by applying the provisions of the Madras Agriculturists' Relief Act, and that decree became final, however erroneous in its origin, by not being appealed against, there will be a claim for restitution. I find the following remarks in the judgment of the District Munsiff, Calicut.
The appellate Court held that the mortgage debt was one which could be scaled down under the provisions of the Act and remanded the petition for ascertaining the amount due for scaling down. Subsequently, the District Munsiff's Court, Parappanangudi, has held that the entire debt has been discharged by payment of more than twice the principal amount including the payment of the arrears of rent due under the decree in question.
These remarks show that the question of restitution has to be enquired into.
4. I, therefore, set aside the order of the lower appellate Court and remand the appeal to the lower appellate Court for fresh disposal after finding out whether the appellant is entitled to any restitution on the facts. In the circumstances, the costs in this second appeal will abide and be provided for by the lower appellate Court when disposing of the appeal afresh.