K. Anantharam Singh and Another vs Marwadi Thara Chand and Others

Venkatasubba Rao, J.—The execution petition, which has given rise to this pre sent appeal, is the sequel of the decision of the High Court

reported in Kesar Singh v. Secretary of State 1926 49 Mad 652. The properties originally belonged to one Anantharama Singh who died in 1865,

and on his death they devolved upon his widow Ramabhoi. She died in the year 1900 and a dispute then arose as to who became entitled to

Anantharama Singh''s estate. The Government claimed it on the ground of escheat. One Kesar Singh put forward a claim, alleging first that he had

been adopted by Ramabhoi, and secondly, that he was a heritable bandhu of Anantharama Singh. In the suit filed by the Government for

possession (O.S. No. 11 of 1920) Kesar Singh was impleaded and he was the main contesting defendant. Several others also were added as

defendants and of them we are at present concerned with, defendants 24 and 25, by name Gomaji and Tara Chand respectively. They held a

usufructuary mortgage created in their favour by Ramabhoi and Kesar Singh, and it was on that account they were impleaded. The trial Court

passed a decree in favour of the Government, but that was reversed by the High Court. The petition in the lower Court has been filed by

Tarachand and another to whom, for the sake of brevity, we shall refer as mortgagees. They complain that they were deprived of the mortgaged

property in pursuance of the trial Court''s decree and, claim that they are entitled to restitution u/s 144, Civil P C. The petition relates (so far as this

appeal is concerned) to two properties, items 12 and 15 in the schedule to the plaint.

The facts in regard to item 15 are not in dispute and may be briefly stated. That item was in the occupation of one Swami (not a party to the

suit), who held it as a tenant under defendants 24 and 25, who were, as already stated, mortgagees with possession. When the Government

succeeded in the Sub Court, Swami recognising their title attorned to them. On the reversal of the Sub-Court''s judgment, the Tahsildar, acting on

behalf of the Government, directed Swami to attorn to Kesar Singh. That was of course wrong, for it was the mortgagees that became entitled to

restitution and not Kesar Singh. However, the fact remains that Kesar Singh took advantage of the wrong order and has since been in possession.

There was some protest by the mortgagees, but it proved of no avail. The decree of the High Court was passed on 6th January 1926 and the

attornment in favour of Kesar Singh was on 2nd July of the same year.

The mortgagees in the execution petition filed by them claimed from Kesar Singh by way of restitution the property and the estimated mesne

profits in respect of it. The lower Court made an order in their favour and the question to be decided is, whether that order can be sustained. We

may mention that the lower Court directed the Government to pay the petitioners the profits that accrued due till 30th June 1926. This part of the

order affects the Government, but they have filed no appeal and, therefore, no question arises in respect of it.

On behalf of the appellant (Kesar Singh''s representatives) it is urged that the mortgagees misconceived their remedy and that the restitution

provision does not apply. This contention, in our opinion, must prevail. The word "" restitution "" connotes that the restoration that the section has in

view, is what is consequential on the reversal of the decree; in other words, the party who took possession under the wrong decree is bound to

restore it when that decree is set aside, i.e., only that party who was benefited by the wrong decree must restore the benefit. That is the scope of

the restitution section; to hold otherwise would be to miss the meaning of the word "" restitution."" The matter may be put in another way. The word

restitution "" implies the restoring to a party what has been lost to him in execution of the erroneous decree or directly in consequence of it.

Applying these tests, it is impossible to hold that Kesar Singh was bound to restore this property in execution. In this connexion we may refer to

Naidar Mal v. Rattan Lal 1927 8 Lah 356, which has a bearing on this point. Kesar Singh obtained possession not in virtue of the Sub-Court''s

decree but by an act independent of it. It was the Government that obtained possession under the wrong decree; but so far as Kesar Singh was

concerned, he was given possession upon the footing that he became entitled to it not under the reversed Sub-Court''s decree, but under the

reversing High Court''s decree. The petitioners cannot, therefore, invoke Section 144 in their favour.

With another contention that was raised on behalf of Kesar Singh''s representatives, we must deal. In the Sub-Court the claim of the mortgagees

was negatived on the ground that their mortgage had not been proved. The appeal that was filed to the High Court was not by the mortgagees, but

by Kesar Singh. Therefore, it is argued that there is no decree of the High Court in favour of the mortgagees, of which they can take advantage.

There is no force, however, in this contention. Under the High Court''s decree the Government''s suit was wholly dismissed and upon a proper

interpretation of it, we must hold that by virtue of Order 41, Rules 4 and 33, Civil P.C. the decree enured for the benefit of the mortgagees also,

they having been parties to the suit. This contention, therefore, fails. Then, we may mention that there is at present a suit pending, in which the rights

of the parties can be determined. Kesar Singh, on 15th February 1927, tendered the amount, which according to him was due under the mortgage.

That tender was refused and the present petition was filed on 14th March 1928. On 27th April 1932 a redemption suit was instituted and it is

pending. We mention these facts merely to show that the view that we have taken, does not in the circumstances entail hardship upon the

petitioners.

In regard to the other property, namely, item 12, the lower Court has held that Kesar Singh obtained possession and on that footing made him

liable in respect of it. This finding of fact has been strongly attacked on the ground that there is not a title of evidence in support of it. We have,

however, thought it proper, in view of the pendency of the suit already referred to, not to express any opinion on this point. Even granting the

finding is correct, as a question of law, as already observed, the petitioner''s claim must be negatived. That being so, it is quite unnecessary to deal

with the question of fact. In the result the appeal is allowed with coats throughout, to be paid by the Official Receiver from and out of the estate of

the mortgagees.