1. We are invited in this Bale to set aside a decree by which the Small Cause Court has dismissed the suit of the petitioners to recover money paid by them on the 16th August 1910, in satisfaction of a decree obtained against them by the defendant.
2. The circumstances under which the suit was commenced may be briefly stated. On the 28th November 1907, a body of zemindars, who had been described as the Dutts, obtained a decree for arrears of rent against one Beni Madhab, the recorded tenant of a tenure. It appears that on the 21st May 1901, the present defendant, Mohendra Nath Roy, had purchased one-half share of the tenure from Beni Madhab while the other half had vested in the plaintiffs; the name of Bani Madhab, however, continued to be recorded in the books of the landlords. The result was that in execution of the decree for arrears of rent obtained by the landlords, they proceeded to bring the tenure to sale. The defendant, Mohendra Nath Roy, thereupon deposited the decretal amount in Court and saved the property from sale. Subsequently, he brought a suit for contribution against the present plaintiffs on the allegation that one-half of the rent was payable by them, while he himself had satisfied the entire claim of the landlords. The suit was dismissed by the primary Court on the 30th November 1909. Upon appeal, a decree was made in favour of Mohendra Nath Roy on the 11th April, 1910. As already stated, the plaintiffs satisfied this decree on the 16th August, following. The Dutts later on obtained a decree for rent against Beni Madhab in respect of a period subsequent to that covered by the earlier litigation. In execution of this decree, the tenure was sold on the 10th May 1910 and was purchased by the present defendant, Mohendra Nath Roy, in the name of his son, Tej Chandra Roy. The plaintiffs thereupon sued to have the sale set aside upon declaration that the rent-decree had been fraudulently obtained. In the course of this litigation, it was established that the Dutts were not entitled to rent in respect of the lands in the occupation of the plaintiffs. Consequently, the rent-decree and the execution sale based thereon were set aside on the 26th May, 1911. The plaintiffs thereupon commenced this suit for a refund of the money realised from them under the decree of the 11th April 1910, on the ground that the decree of the 26th May 1911 shows that the decree in the contribution suit was erroneous. The Small Cause Court Judge has held' that the suit is not maintainable. In this Court, it has been contended, on the authority of the decision of a Full Bench in Jogesh Chunder Dutt v. Kali Churn Dutt 3 C. 30 : 1 C.L.R. 5 that the plaintiffs are entitled to a refund. In oar opinion, the case mentioned is distinguishable and the view taken by the Small Cause Court Judge is correct.
3. As was pointed out by their Lordships of the Judicial Committee in the case of Shama Purshad Roy Chowdhury v. Hurro Pershad Roy Chowdhry 10 M.I.A. 203 at 211 : 3 W.R. 11 (P.C.) money recovered under a decree or judgment cannot be recovered back in a fresh suit or action, whilst the decree or judgment under which it was recovered remains in force Marriot v. Hampton 7 T.R. 269 : 269 4 R.R. 439 : 2 Esp. 546. But this rule of law rests upon the ground that the original decree or judgment must be taken to be subsisting and valid, until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought certainly to be refunded and is recoverable either by summary process or by a new suit or action. The true question, therefore, in such cases, is whether the decree or judgment, under which the money was originally recovered, has been reversed or superseded. In the case before us, it is impossible to say that the effect of the decree in the subsequent litigation for cancellation of the second decree and reversal of the sale based thereon, was to vacate the earlier decree. The case of Jogesh Chunder Dutt v. Kali Churn Butt 3 C. 30 : 1 C.L.R. 5 is obviously distinguish able there the subsequent decrees were obtained daring the pendency of an appeal to the Judicial Committee against the earlier decree and it was ruled that the effect of the ultimate decision of the Judicial Committee was not only to vacate the decree directly challenged, but also to supersede the later decrees passed solely on the basis of that decree. In the case before us, what has been set aside is the subsequent decree; the first decree is still operative and conclusive between the parties; the plaintiffs are not free to re-discuss the merits of the decree in the first contribution suit: and cannot, consequently, recover the amount paid in satisfaction of that decree, in what is essentially an action for money had and received.
4. The Rule is discharged with costs. We assess the hearing fee at two gold mohurs.