Somasundaram Pillai and Another vs Chokkalingam Pillai

Seshagiri Ayyar, J.—We are unable to agree with the Subordinate Judge that the application is barred as res judicata. The previous

application was for the restitution of a sum of money recovered in execution in consequence of the decree having been reversed on appeal. The

present application is for interest on the money for the period during which the counter-petitioner had the use of it.

We do not think that the principle of constructive res judicata, whether Section 11, explanation IV, or Order II, Rule 2 of the Code of Civil

Procedure, is invoked in its aid, should be applied to execution proceedings as a matter of course. As we said recently in Sundaram Chetti v.

Varadayyar Appeal Against Appellate Order No. 57 of 1916 unless the decision of the question subsequently sought to be agitated, was either

expressly given or must be deemed to have been necessarily implied in the previous decision, the principle of res judkata should not be applied to

execution proceedings: see Lakshminarayana v. Pallamraju (1916) 4 M.L.W. 101.

Mr. Muthiah Mudaliyar contended that an application for restitution is not in execution. He pointed to the change of language between Section

583 of the previous CPC and Section 144 of the present Code. We are unable to see the difference. Section 144 of the present Code has been so

framed as to enable the successful party in the Appellate Court to be placed in statu quo ante. The language of Section 583 of the old Code was

not wide enough to cover all cases of benefits arising from the reversal of a. decree being fully realized by the successful party. Apart from this

change, we see no ground for holding that the legislature intended to make any departure in the procedure by which restitution is to be obtained.

Under the old Code, restitution was by way of execution: see Prag Narain v. Kamakhia Singh ILR (1909) All. 551 The same rule applies to

similar applications under the new Code. The language of Section 47 of the Code would cover all cases of restitution. The party seeking the aid of

the Court is agitating a question relating to the execution of the decree under which the other party deprived him of his property.

We entirely agree with the decision in Balasubramania Chetty v. Swarnammal ILR (1915) Mad. 199 that Order II, Rule 2 of the present CPC

does not govern restitution applications. The present application is really for damages for the appellant having been deprived of the use of his

money during a particular period. We must, therefore, reverse the order of the Subordinate Judge. We think the appellant is only entitled to 6 per

cent interest on Rs. 1,881-1-3 from the 8th of September, 1911 to the 28th of October, 1914. Parties will pay and receive proportionate costs in

this and in the Court below.