Dalu Ram Gobardhan Das vs Ramanand Jurimull

Chatterji, J.—The appellant brought a suit for compensation on the alleged ground of a breach of contract against the respondent and obtained a decree for a sum of Rs. 4,815 with interest thereon at the rate of six per cent per annum and also for costs. An appeal was preferred by the respondent against-that decree. During the pendency of this appeal the appellant put his decree into execution, whereupon this Court, directed that the execution should be stayed on the judgment-debtor furnishing cash security to the extent of the decretal amount including costs and interest. Thereupon the respondent deposited the decretal amount in Court on 14th March 1924.

The appellant withdrew this amount from Court after furnishing sufficient security on 11th December 1924. After this the decree in the original suit was set aside and the suit was dismissed in its entirety. The respondent applied for restitution and claimed not merely the refund of the decretal amount deposited by him but also interest from the date of the deposit, namely, 14th March 1924. This claim of interest was resisted by the appellant who stated that he should be made liable for interest from the date of the withdrawal, namely, 11th December 1924. The learned Subordinate Judge overruled this objection and allowed interest from the date of the deposit.

It is urged on behalf of the appellant that no interest should be charged during the period when the money was lying in Court because he had not the advantage of this amount and reliance is placed on the case of Ashutosh Goswami v. Upendra Prasad Mitra 21 C.W.N. 564. In this case restitution was allowed of the sum withdrawn together with interest thereon from the date of the withdrawal to the date of repayment in the Court. But the point whether the interest should be paid for the period between the date of the deposit and the date of the withdrawal was not agitated and was not considered.

In the next place in that case, the judgment-debtor obtained an order of injunction restraining the decree-holder from withdrawing the amount and in fact it was due to his objection that the decree-holder could not withdraw the money earlier. Therefore the facts of this case stand on quite a different footing. Reference has been made on behalf of the respondent to the decision in Hirabhai Dahyabhai Vs. Maneklal Ranchhod, . There the question arose whether interest should be charged of the money during the period that it remained in Court and it was held that a party could not resist the claim on the ground that it acquired no benefit from the money. This is a clear authority against the contention of the learned advocate for the appellant.

It appears that Section 144, Civil P.C., shows the principle of restitution. It provides that a party should be placed in the same position which he would have occupied but for a decree which has been varied or reversed and 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. Therefore the point is really whether the payment of interest claimed is or is not consequential on the reversal of the decree by virtue of which the judgment-debtor had to make the deposit in Court when the decree-holder put his decree into execution.

It has been laid down in Dorasami Ayyar v. Annaswami Ayyar [1900] 23 Mad. 306 that the principle of the doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the errneous judgment to make restitution to the other party for which he had lost and it is the duty of the Court to enforce that obligation, unless it be shown that the restitution would be clearly contrary to the real justice of the case.

The definition of the expression "mesne profits" in the CPC Section 2, Sub-section (12) also throws some light in a case like this. It provides that "mesne profits" mean the profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received together with interest on such profits. Therefore the fact that the decree-holder did not withdraw the deposit is immaterial. If he could with ordinary diligence have received the amount, there is no reason why he would not be liable to pay interest to the party who was by reason of his action deprived of the benefit of his money.

In the present case our attention is drawn by the learned advocate for the appellant to the fact that the judgment-debtor had raised an objection to his withdrawal of the money. It appears that the judgment-debtor did really file an objection petition but this was dismissed on 29th March 1924. So up to that date even with ordinary diligence the decree-holder could not have withdrawn the decretal amount deposited by the judgment-debtor, but after that if he was diligent in the ordinary way, the money was certainly available to him.

Therefore the proper order to pass in the present case will be to allow interest to the respondent from 30th March 1924 till the date of repayment of the money by the appellant.

The cross appeal is not pressed and is dismissed. The appeal is allowed in part subject to the variation indicated above. Bach party will bear, its own costs.

Fazl Ali, J.

I agree.