1. This appeal is preferred by the defendant-petitioner in E. A. No. 84 of 1956 in O. S. No. 98 of 1949 on the file of the Court of Subordinate Judge, Tirunelveli. That was an application made by the defendant in the suit for restitution Under Section 144, C. P. C.
2. The facts of the case are: One Muthuswami Reddiar filed O. S. No. 98 of 1949 against the present appellant in the court of the Subordinate Judge, Tirunelveli, for recovery of a largo sum of money and obtained a decree for about Rs. 10,000, odd and Rs. 1400 odd for costs against the appellant. The appellant preferred an appeal against that decree to this court in A. S. No. 121 of 1951. Pending appeal, he applied for stay of execution and this court ordered the entire decree amount to be deposited into court as a condition of the stay, and further ordered that the decree amount could be withdrawn by the decree-holder on his furnishing security of immoveable property. In pursuance of the order of this court, the judgment debtor, the appellant before me, deposited the entire decree amount into the lower court he having paid the costs of suit to the decree-holder.
But the decree-holder never furnished security as directed in the order of this court and consequently never withdrew the amount which was lying in court. Ultimately, the appeal, A. S. No. 121 of 1951, succeeded and the liability of the appellant was reduced to Rs. 562-12-0 for the plaint claim and Rs. 108-9-5 for costs, in the place of Rs. 10,000 odd and Rs. 1400 odd granted by the lower court. After this decision of the appeal, the judgment debtor applied to the lower court in E. A. No. 84 of 1956 for restitution, after giving credit to the sum of Rs. 108-9-5, which he was liable to pay as costs of the suit,
3. In these proceedings, he claimed a sum of Rs. 1365-0-7 on account of the excess costs paid to the decree-holder as per the decree of the first court. He also claimed Rs. 10962-2-0 deposited in pursuance of the order of this court in the stay application. He further claimed interest on both these amounts at 6 per cent per annum. The learned Subordinate Judge directed restitution by passing an order calling upon the legal representative of the original plaintiff, who had died in the meanwhile to pay back the amount of costs claimed, together with interest at 6 per cent per annum. But, in respect of the plaint claim, the learned Judge refused to give interest claimed, on the ground that the decree-holder had not withdrawn the amount from court and the money was always lying in court till the appeal was disposed of.
4. Gopalakrishnan, the learned counsel for the appellant relies upon the Bench ruling in Shanmugasundara Mudaliar v. Ratnavelu Mudaliar, 66 MLW 504: AIR 1933 Mad 33, where the same question arose for decision. That Bench ruled that restitution contemplated Under Section 144 C. P. C. was the restoration to the injured party of what he had lost and not the deprivation of the other party of what he had wrongfully gained. The reason behind this principle is that the object of restitution is to put back the wronged party into the position in which he would have been but for the wrong decree or order which was afterwards reversed and not to compel the party, who was benefited by the wrong decree, to return any benefit which he had gained by that decree. This decision is on all fours with the fact of the case before me and I am bound to follow it. Mr. Desikan attempted to distinguish this decision by saying that the inabilityof the decree-holder to withdraw the money in court was due to a positive act on the part of the judgment-debtor in insisting upon security being given for the money before it could be withdrawn. That condition was imposed by the order of this court, no doubt, at the request of the judgment-debtor when he preferred the application for stay of execution. This circumstance is not noticed in the decision mentioned above. But I am unable to see how it makes any difference. If the true test, as laid down in the decision, was that the object of restitution is to compensate an injured party and not to deprive a party, who had benefited by the wrong decree, of the benefit that he had received, it makes no difference whether the money was allowed to lie in deposit either because by the terms of the order grunting stay security had to be given or even because the decree-holder did not care to withdraw the money, even though there was no obstacle in his way to doing so.
5. Mr. Desikan referred me to the decision in South Indian Railway Co. Ltd. v. Mayilvahanan, : AIR1943Mad334 . There a decree was obtained, against the South Indian Railway Company for a certain sum of money and an appeal was preferred by the railway company against that decree. An order for stay of execution was obtained in appeal by which the decree amount was directed to be deposited in the trial court and the plaintiff was permitted to withdraw it on giving security. The company accordingly deposited the amount and since the decree-holder was a minor, it insisted, in accordance with the terms both of the provisions of the Civil Procedure Code relating thereto and of the order granting stay, that the decree-holder should not draw the amount without giving security. The next friend of the minor was unable to furnish the required security, and, therefore, the money was not drawn. Ultimately, the appeal preferred by the railway company failed and the decree-holder applied for payment of the amount, and in addition, claimed interest on the amount for the period between the date of deposit and the date of payment to him. A Bench consisting of King and Kunhiraman JJ. disallowed this claim for interest on the ground that in any event the amount could not have been withdrawn by the decree-holder without giving security because the decree-holder was a minor. That was not a case of restitution involving the application of the rule embodied in Section 144 C. P. C. That decision has, therefore, no application to this case.
6. Following the decision in 36 MLW 504:AIR 1933 Mad 33, I hold that the learned Subordinate Judge was wrong in refusing to awardinterest claimed in the application for restitution.The appeal is allowed. There will be an order interms of the prayer in E. A. No. 84 ot 1956 withcosts. The appellant will be entitled to costs of theappeal here.