Skip to content


Muthuswami Naicker and ors. Vs. Ramalinga Naicker - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Reported inAIR1958Mad366; (1958)1MLJ408
AppellantMuthuswami Naicker and ors.
RespondentRamalinga Naicker
Cases Referred and Rukmani v. Subramania
Excerpt:
- .....for both sides. mr.vaidyanatha ayyar strongly relies on the wording of order 41, rule 6(1), civil procedure code and says that the court shall order security as a condition precedent to the withdrawal of even moneys in restitution as the word 'restitution' is found in that rule. mr. ramachandra ayyar, learned counsel for the respondent,' pointed out that the petition itself was filed only under section 151, civil procedure code, and not under order 41, rule 6, civil procedure code. i do not consider this an impediment in the way of mr. vaidyanatha iyer's relying on order 41, rule 6, civil procedure code, if it will help him. in modern times, the mere fact that a section of law rightly applicable to a matter is not quoted, and another section of law not so clearly applicable to the.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition for revising and setting aside the order of the Subordinate Judge of Madurai dismissing E.A. No. 389 of 1957 in E.P. No. 403 of 1956 in O.S. No. 93 of 1950 on his file. That was a petition put in by these petitioners, under Section 151, Civil Procedure Code alone, for directing the respondent, Ramalinga Naicker, to give sufficient immovable property, security before drawing out the amount of Rs. 2,000 deposited by them into Court as a first installment by way of restitution of the amount of some Rs. 7989.54 in all due to the respondent by virtue of the first Court decree against him in O.S. No. 93 of 1950, Sub-Court, Madurai, having been set aside by this Court in appeal (A.S. No. 480 of 1952). The petitioner's case was that they had filed L.P.A. No. 41 of 1956 in this Court against the judgment and decree in A.S. No. 480 of 1952, and that, though the stay application in that L.P.A. had been dismissed by a Bench of this Court, to which I too was a party, the respondent who was alleged to be a man of no means, should be made to give immovable property security for the Rs. 2,000 put into Court before he drew it out. It is represented to me by Mr. T.S. Vaidyanatha Ayyar that the balance of Rs. 5,989.54 has also been since deposited into the trial Court under an order of Ramaswami, J., dated 29th July, 1957, in a C.M.P. in this Civil Revision Petition as a condition precedent to stay of execution.

2. I have perused the records and heard the learned Counsel for both sides. Mr.Vaidyanatha Ayyar strongly relies on the wording of Order 41, Rule 6(1), Civil Procedure Code and says that the Court shall order security as a condition precedent to the withdrawal of even moneys in restitution as the word 'restitution' is found in that rule. Mr. Ramachandra Ayyar, learned Counsel for the respondent,' pointed out that the petition itself was filed only under Section 151, Civil Procedure Code, and not under Order 41, Rule 6, Civil Procedure Code. I do not consider this an impediment in the way of Mr. Vaidyanatha Iyer's relying on Order 41, Rule 6, Civil Procedure Code, if it will help him. In modern times, the mere fact that a section of law rightly applicable to a matter is not quoted, and another section of law not so clearly applicable to the matter is quoted, will not bar the party from relying on the right section of law, if it is not totally irrelevant, or unconnected with the previous section. After all it is the Courts which lay down the law and are supposed to be the reservoirs of law and not parties who file petitions. But the difficulty facing Mr. Vaidyanatha Ayyar is that Order 41, Rule 6, Civil Procedure Code, will also not help him in the circumstances of this case, which is a case of restitution under Section 144, Civil Procedu e Code. Section 144, Civil Procedure Code, says that where and in so far as a decree is varied or reversed, the Court of the first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made, as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed, and that for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. It need hardly be pointed out that there is a tremendous difference between drawing out the money of another party put into Court for averting a sale in execution or a decree passed in one's favour, and one's own money put back into Court by the other party after the wrong decree in his favour has been reversed in appeal. The word 'restitution' in Order 41, Rule 6, Civil Procedure Code, relied on by Mr. Vaidyanatha Ayyar occurring in the clause 'require security to be taken for the restitution of any property which may be or has been taken in execution of the decree' has no reference at all to the restitution proper in Section 144, Civil Procedure Code. It means that when a party in whose favour a decree has been passed wants to take the money deposited by the other party to avert a sale in execution of that decree, when an appeal is pending, suitable terms may be imposed on such withdrawal. The thing is quite different when a party is only trying, as in this case, to draw out one's own amounts put in by the other side, by way of restitution. Mr. Vaidyanatha Ayyar urged that the money cannot be termed to be respondent's money, as under the the first Court's decree, which has been set aside, the money was the petitioner's. The argument is unconvincing. No decree of a trial Court has any existence in law when it has been set aside in appeal, any more than a conviction of a trial Court when it has been set aside in appeal and an acquittal has been recorded by the appellate Court. When only restitution is prayed for, in other words, it is only a question of getting back one's own moneys put into Court because of a wrong decree, the question of the solvency of the person who wanted to draw it out is not very relevant. He was the person who put the money into Court and he had every right to draw it out when the decree which compelled him to put into Court has been set aside and restitution ordered and the money put back into Court by the party wrongly drawing it out. Simply because an L.P.A. has been filed by the petitioners, and there is said to be a chance of their succeeding in that appeal, it is no reason to dep ive the respondent of his right to take his money in the meanwhile. It is not proved that the respondent is such a down-and-out pauper, as was stated by the petitioners, or that he will sell away the rest of his properties. But as stated above, even if he is a pauper, he will be entitled to draw back his own moneys, by way of restitution, without security. There is no decree of any kind against him now, and no attachment or other order binding the money. So under the law he will be entitled to draw it out without security. The rulings relied on by Mr. Vaidyanaha Ayyar, namely, Dhirendra Nath v. Sailaj Kumar : AIR1940Cal582 , and Rukmani v. Subramania : AIR1940Mad420 , have no relevancy to the facts of this case and will not apply here. Each case: has to be decided on its own merits.

3. Mr. Vaidyanatha Ayyar lastly urged that the petitioners are prepared to pay interest to the respondent for the period the money lies in Court on his failure to furnish security. But that will mean a forced loan of the money by the respendent to the petitioners, which no Court in this country has yet the power to order. Nor can I see why a man, who need not give any security for drawing out his own moneys,should be forced to lend the moneys out to his opponent, who got a wrong decree, subsequently set aside in appeal, though there is an L.P.A. pending. It must be noticed also that in the L.P.A. stay was refused by the Bench to the petitioners. It is not as if any valuable properties of the petitioners are awaiting sale now, and valuable properties may be sold for a song. The entire money due to the respondent by way of restitution has been deposited into Court. So the only question now is whether the respondent ought to furnish security for drawing out his own moneys, and that question must unhesitatingly be answered, in the circumstances, in the negative and in favour of the respondent and against the petitioners.

4. This Civil Revision Petition deserves to be and is hereby dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //