(Firm) Ratnaji Chandanmall vs Kolli Ramakrishnayya

Venkataramana Rao, J.—The question involved in this appeal is one of restitution. The facts necessary for the disposal of the same may be

briefly stated. Respondent 1 filed a suit O.S. No. 657 of 1928, on the file of the District Munsif''s Court of Repalle against one Moturi Chimpayya

and others for recovery of possession of certain Immovable property and for mesne profits for the year 1927. During the pendency of that suit he

applied for the appointment of a receiver and a receiver was accordingly appointed on 12th December 1929. The receiver leased the said

property and deposited the amount collected by him, a sum of Rs. 451, into Court as rent for the year 1929. The said suit was ultimately decided

in favour of the plaintiff. He then applied to the Court for payment of the said sum of money, but the Court took the view that since he had not

prayed for future profits in his plaint, he would not be entitled to the said amount until he takes appropriate proceedings to establish his right to the

same and gets a decree. The result of this order was as between respondent 1 and the defendants in the said suit that the title of the plaintiff to the

said fund in Court was negatived and the judgment-debtor from whom the property was taken possession of by the receiver must be deemed to

be entitled to the same. So long as the said order stood unreversed and till the plaintiff established his right to the same, it would not be open to the

plaintiff-respondent 1 to resist the claim of the said Moturi Chimpayya and other defendants in the suit or anybody who derives title from them or

by virtue of the said right asserts a claim thereto.

The appellant in this appeal filed a suit, O.S. No. 295 of 1929, on the file of the District Munsif of Rapalle against the said Moturi Chimpayya

and others for recovery of a sum of money and obtained a decree; Subsequent to the order made in O.S. No. 657 of 1928 negativing the title of

the plaintiff, to the amount in Court deposit in that suit, the appellant applied for an order of attachment of the said sum in execution of his decree.

The plaintiff-respondent 1 intervened and objected to the said attachment alleging that he had preferred an appeal against the order declining to

grant him the said amount in his suit and that the appellant is not entitled to attach the said amount as the fund did not belong to the judgment-

debtors. As the title to the said fund was already negatived the District Munsif by his order dated 29th August 1930 directed the attachment to

issue and subsequently paid over the said amount to the appellant. Meanwhile the plaintiff respondent 1 who preferred an appeal against the order

negativing his title to the said fund succeeded in his appeal, and it was therein held that the plaintiff was entitled to the said money and the

judgment-debtors had no right thereto. Thereupon the plaintiff-respondent 1 put in an application for restitution of the money taken by the appellant

herein. Both the lower Courts concurred in granting the relief to the plaintiff-respondent 1. Mr. V. Suryanarayana contends that neither Section

144 nor Section 151, Civil P.C., applies to the case, that the lower Court had no jurisdiction to grant restitution, that the order directing attachment

of the said fund was final and so long as the said order stands, it is not open to the plaintiff-respondent 1 to claim the said sum of money. In my

opinion, this contention is unsustainable.

There can be no question that Section 144 would not apply to the case but the non-applicability of Section 144 would not prevent a Court from

granting restitution in the exercise of its inherent powers and this is eminently a fit case wherein the Court should exercise its inherent powers. It is a

well-settled principle of law that where a Court has wrongly paid the money to a person not entitled thereto, it has not only the power but it is also

its duty to recover it from him. In O.S. No. 657 of 1928 when the Court appointed a receiver and he deposited the money into Court, the moment

the plaintiff succeeded in the suit it was the duty of the Court to pay over the said money to the plaintiff. The said fund was held in trust for the

plaintiff by the Court but owing to an erroneous view, it parted with the said fund to a person who was not entitled thereto. When it was found that

the view taken by the Court was wrong, there is inherent jurisdiction in the Court to call back the said money. Curgenven, J. in M.P. Palaniappa

Chettiar and Others Vs. S.A. Ramanathan Chettiar and Another, . after referring to the observations of Cairns, L.C. in Rodgers v. Comptoird

Escompte de Paris (1809) 2 PC 393, viz., ""one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to

any of the suitors,"" observed thus:

This statement of the law would appear general enough to cover a case where the executing Court has been made to take a wrong step by an

erroneous decision passed by another Court.

It seems to me that this principle would cover the present case. The District Munsif would not have made the order he did directing the

attachment in O.S. No. 295 of 1929 but for the order he made in O.S. No. 657 of 1928 negativing the title of the plaintiff to the fund to the credit

of that suit. It is contended by Mr. Satyanarayana that the appellant was not a party to the appeal preferred by the plaintiff-respondent 1 against

the order made on his petition in O.S. No. 657 of 1928 and therefore he cannot be said to be bound by any order made therein. It has been found

that the order passed in appeal was made after contest and there was no collusion between the plaintiff-respondent 1 and the judgment-debtors.

The claim of the appellant to the said fund was in the right of the judgment-debtors and the said right was actively asserted by them in appeal and

when the fund was taken by the appellant, the title of the judgment-debtors was the subject matter of the pending appeal. The appellant must

therefore be deemed to have taken subject to the result of the decision in the said appeal. Once the title of the judgment-debtor was negatived he

had no right to the said fund and a case in point is Amba Lal v. Ramgopal Madho Prasad AIR 1938 All 218. In that case a decree-holder A in

execution of a decree against his judgment-debtor attached certain property as belonging to him and in execution purchased it himself. The said

property at the date of the attachment and sale was allotted to the share of the judgment-debtor in a partition suit with his brothers. The sale

proceeds of the property purchased had to be deposited in Court because it had to be distributed between A and two other rival decree-holders

B and C, and the sale proceeds wore accordingly rateably distributed. Subsequently in a litigation between the judgment-debtor and his brothers, it

was found that the greater portion of the property purchased by the decree-holder A was found not to belong to the judgment-debtor. Thereupon

A applied for refund from the rival decree-holders of so much of the money taken in excess of their legitimate share on the grounds that so much of

the money which represented the property that was found not to belong to the judgment-debtor was wrongly distributed and a share thereof taken

by them and when once the title of the judgment. debtor was found against they must bring back the said money to Court. It was held that the rival

decree, holders were bound to bring the said amount to Court and the Court had jurisdiction to grant restitution in the exercise of its inherent

power though Section 144, Civil P.C., would not apply to the case. The only difference between that case and this is that in the one case a portion

of the property was found to belong to the judgment-debtor and in the other no portion has been found to belong to the judgment-debtor.

Therefore the lower Courts have properly granted restitution. In the result this appeal fails and is dismissed with costs. Leave refused.