1. The questions for consideration are : (1) Whether an application for execution to obtain the benefit of restitution, which a person became entitled to by reason of an Appellate Court having reversed the decree of the Court of first instance, is an application for execution of the decree passed on appeal, the reversing appellate decree being dated in 1907 before the new Civil Procedure Code came into force. In other words, whether the party who succeeded in the appeal has got a right to treat the appellate decree as not only a decree reversing the decree of the first Court, but also as a decree containing a direction to his opponent to restore whatever benefit the latter had derived through execution under the reversed decree.
2. (2) If the above question is answered in the affirmative on the construction of Section 583 of the old Civil Procedure Code, whether the successful party in appeal lost the benefit of that portion of the appellate decree which granted restitution, by reason of the repeal of Section 583 of the old Code and the substitution of Section 144 (1) and 24 M.P 343 (2) in the new Code.
3. In Venkayya v. Raghavacharlu 20 M. 448, it was held [dissenting from an obiter dictum in Kurupam Zemindar v. Sadasiva 10 M. 66] that applications made to obtainrestitution under Section 583 (old Code) are proceedings in execution of the appellate decree. The language of Section 583 also clearly supports that view, the important words being 'decree passed in an appeal obtains execution of the same' and 'such Court shall proceed to execute the decree paused in appeal. ' The ruling in Vasudeva Ravi Varman v. Narayana Pattar 24 M.P 345, on the other hand, treats the application to obtain the benefit by way of restitution as an application sui generis, and not an application for execution of the appellate decree. We do not think it necessary to refer to the other numerous cases decided in all the Indian High Courts relied on by both sides on this question and on the connected questions, including the point whether the successful appellant has the right to bring a separate suit for obtaining the benefit of restitution besides the right to apply under Section 583. Most of those questions are now only of academical interest after the enactment of the new Civil Procedue Code. The appellate decree of 1907 having been passed when the old Code was in force and the view enunciated in Venkayya v. Raghavacharlu 20 M.P 448 being, in our opinion, the sounder view, the appellate decree passed in 1907 must be treated as having contained a direction for restitution, which direction could be enforced in execution of that appellate decree.
4. On the second question we are clear that a decree for restitution passed in favour of a person in 1907 cannot be deemed to have ceased to exist in 1909, assuming (without deciding) that by reason of Section 144 of the new Code, a reversing decree passed on appeal after the new Code came into force should not be treated as containing a direction for restitution, till an order is passed by the Court of first instance on the application of the successful appellant directing such restitution.
5. Admittedly no question of limitation arises if the appellate decree of 1907 is treated as an executable decree for restitution.
6. This appeal by the judgment-debtor (in restitution proceedings) is, therefore, dismissed with costs.
7. Coming to the memorandum of objections, the representative of the decree-holder in restitution (who is the respondent before us) contends that because the restitution-judgment-debtor obtained a pro-note from a debtor of the decree-holder for Rs. 2,300 and entered up partial satisfaction of the reversed original decree to that extent, he (the restitution-judgment-debtor) is bound to give back the entire sum of Rs. 2,300 in restitution, and not merely the sum of rs. 1,200 and odd which he recovered on the strength of the pro-note before the decree was reversed. We think that as the restitution-decree-holder's debtor executed the pro-note to the restitution-judgment-debtor in the latter's capacity as attaching decree-holder under the first Court's decree, the obligation under that pro-note ceased to bind the garnishee as soon as that decree was reversed, because the garnishee executed the pro-note (according to the affidavit of the respondent's agent on the record) not at the request of the restitution-decree-holder (in which case it might be fairly argued that the pro-note did not become void for failure of consideration on the reversal of the first Court's decree), but by arrangement between the garnishee and the respondent as between themselves, the consideration for the pro-note being the then existing right in the respondent to proceed through Court against the garnishee and to recover the money due to the restitution-decree-holder. That considerarion failed as soon as that right of the respondent was extinguished by the appellate decree and the respondent could not thereafter recover anything under the pro-note. The restitution-judgment-debtor (appellant) was, therefore, liable to restore only the Rs. 1,200 which he had actually received before the reversal.
8. The lower Court's order was, therefore, right on this point also and the memorandum of objections is also dismissed with costs.