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Sait Asuram Sada Suk Bhattach Vs. the Sub-collector of Rajahmundry and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in123Ind.Cas.47
AppellantSait Asuram Sada Suk Bhattach
RespondentThe Sub-collector of Rajahmundry and anr.
Cases ReferredCollector of Ahmedabad v. Lavji Mulji
Excerpt:
civil procedure code (act v of 1908), section 144 - restitution under security bond--interest on amount secured, whether payable. - .....on 24th september, 1924, and the money was deposited by the government on 9th october, 1924. the security bond which was executed by the 3rd respondent, the appellant before us, is ex. a. in that security bond, the appellant undertakes that 'if a.s. no. 256 of 1924 on the file of the madras high court should be partly or wholly decided in favour of the appellant and the 3rd respondent deposits in the court the said sum of rs. 22,614-12-0 or any part thereof as he may be required to pay back under the decree of the high court, this bond shall be void and of no effect, otherwise it shall remain in force.' he withdrew the money from the court after executing this security bond. the high court dismissed a.s. no. 325 of 1924 filed by the claimants who were respondents nos. 1 and 2 and.....
Judgment:

Madhavan Nair, J.

1. This appeal arises out of an application under Sections 144 and 151, Civil Procedure Code, for restitution against the 3rd respondent in A.S. No. 256 of 1924 before this Court and also for the recovery of costs that were ordered to be paid by the claimants Nos. 1 and 2 in the two connected appeals, Nos. 256 of 1924 and 334 of 1924. The facts of the case are stated in detail by the learned District Judge and need not be re-stated.

2. It appears that a sum of Rs. 22,614-12-0 was ordered to be paid in excess by the District Judge to the claimants in a certain land acquisition proceeding on a reference to him under the Land Acquisition Act. Against the order to pay the excess amount two appeals were preferred to the High Court, one A.S. No. 324 of 1924 by the claimants in that proceedings, and another, A.S. No. 256 of 1924 by the Government. In A.S. No. 256 of 1924, the Government filed an application for stay of execution of the order that the 3rd respondent may be allowed on furnishing security to take the amount of money that would be deposited by the Government in the lower Court. This order was passed on 24th September, 1924, and the money was deposited by the Government on 9th October, 1924. The security bond which was executed by the 3rd respondent, the appellant before us, is Ex. A. In that security bond, the appellant undertakes that 'if A.S. No. 256 of 1924 on the file of the Madras High Court should be partly or wholly decided in favour of the appellant and the 3rd respondent deposits in the Court the said sum of Rs. 22,614-12-0 or any part thereof as he may be required to pay back under the decree of the High Court, this bond shall be void and of no effect, otherwise it shall remain in force.' He withdrew the money from the Court after executing this security bond. The High Court dismissed A.S. No. 325 of 1924 filed by the claimants who were respondents Nos. 1 and 2 and allowed the appeal by the Government, A.S. No. 256 of 1924 to a certain extent, with the result that the amount to be deposited by the Government as compensation for the lands of respondents Nos. 1 and 2 was reduced by Rs. 17,148-15-10 and the respondents Nos. 1 and 2 were made liable to pay the Government by way of costs Rs. 1,601-1-2 and Rs. 756 12 5. There was no decree against or in favour of the 3rd respondent. Now, the Government have filed the present application for recovery of the amount of Rs. 17,148-1510 plus interest upon that amount as well as the two sums ordered as costs from the 3rd respondent. The 3rd respondent does not deny his liability to pay the amount of Rs. 17,14815-10. But his case is that he could not be called upon to pay interest upon that amount nor should be asked to pay the coats. The learned District Judge has disallowed both these contentions. In the present appeal, the appellant urges both these grounds.

3. As regards interest, the argument of the learned Advocate for the appellant is that under the security bond executed by the 3rd respondent he undertook to pay the total amount. There is no provision made for the payment of interest and, therefore he is not bound to pay interest to the Government. The question is, whether there is the limitation of the liability to pay interest introduced in this security bond The proceeding is admittedly one under Section 144, Civil Procedure Code, and the Court has discretion to order the payment of interest on the amount which the parties are bound to pay back to the Government by way of restitution under that section. We do not think that the security bond in any way limits the liability for the payment of interest which the Court has got power to order as against the 3rd respondent. In the case reported as Indra Chand Bothra v. A.H. Forbes 39 Ind. Cas. 22 : 2 P.L.J. 149 it was held that 'under Section 144 of the Code of Civil Procedure, the Court may, in its discretion, award such interest as it chooses, and the fact, that the principal only is secured by a bond under the order of the Court at the time of the withdrawal of the sum originally decreed, does not affect the liability of the person ordered to make restitution to pay interest in accordance with the section.' This case was followed in this Court in the decision of Alagappa Chettiar v. Muthukumara Chettiar 48 Ind. Cas. 836 : 41 M. 316 : 22 M.L.T. 162 : (1917) M.W.N. 669. No doubt, the decision of our Court was not one under Section 144, Civil Procedure Code, but the learned Judges followed the principle underlying that section. The learned Judge of this Court, Srinivasa Iyengar, J., decided against the contention that the party should be ordered to pay interest on the ground that the undertaking given by the party did not provide for the payment of interest in that case. The Judges in Letters Patent Appeal following the decision in Indra Chand Bothra v. A.H. Forbes 39 Ind. Cas. 22 : 2 P.L.J. 149 set aside this decision. The decision in Collector of Ahmedabad v. Lavji Mulji 10 Ind. Cas. 818 : 35 B. 255 : 13 Bom.L.R. 259, referred to by the learned Government Pleader, comes nearest to the point as it relates to the payment of compensation under land acquisition proceedings though there was no security bond executed in that case. In that case, as in the one before us, the High Court reduced the amount of compensation payable to the claimant and, when the Government applied to recover from the claimant interest upon the excess amount drawn by him from the Court, that claim was allowed. It was held 'that the interest claimed should be awarded inasmuch as the claimant had the benefit of the money belonging to the Government in excess of that to which the High Court held him to be entitled and the benefit was represented not only by the excess wrongly taken by the claimant from the District Court but also the amount of interest, which the excess parried.' We are prepared to apply the principle underlying these decisions to the present case. One special feature of this case may be noticed and that is, that the Government asked for an order staying execution of the decree and deposited the money when the order in favour of the 3rd respondent was made here. In these circumstances, we think the order as regards interest should be upheld.

4. The next argument of the appellant is that he should not be asked to pay costs, because he was not a party to the suit and there was no order against him. It is true that there was no decree against him as regards costs, but, for the purpose of the present case, we think he stands in the shoes of claimants Nos. 1 and 2, and the amount which was ordered to be paid by the High Court was in favour of the claimants. As a matter of fact, the appellant before us has no claim to the money except through the claimants Nos. 1 and 2, for the purpose of the proceedings under the Land Acquisition Act and these connected proceedings for restitution, his interest must be considered to be identical with the interest of claimants Nos. 1 and 2 And, further, in the security bond he undertook to deposit in Court whatever money he might be required to pay back under the decree of the High Court; that is to say, be made himself liable to the decree of the High Court and the decree of the High Court made the claimants Nos. 1 and 2 in the two appeals before it liable for costs of the Government. In these circumstances, we uphold the order as regards costs as well.

5. In the result, the civil miscellaneous appeal is dismissed with costs.

Cornish, J.

6. I agree.


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