Tanguturi Subbarayudu vs Yerramsethi Seshasani

The question for determination in this appeal is whether the Lower Courts were right in holding that the respondent was entitled to restitution u/s

144 of the Civil Procedure Code.

One Kamisetti Ghatta as president of a certain fund obtained a money decree against"" the respondent and two others in O.S. No. 985 of 1897

in the District Munsif''s Court, Gooty, on 12-2-1898. One Narayana Rao styling himself president of the fund transferred the decree to the

appellant.

The objection raised by the judgment-debtors to the transferee''s right to execute the-decree was overruled and the transfer was recognised by

the Court on 12-7-04. The appellant received Rs. 315-14-4 from the respondent (1st defendant in the suit) in execution on 12-8-04.

Prior to the payment of the decree amount the respondent and another had instituted a suit O.S. No. 479 of 1914 in the Gooty Munsif''s. Court

against the appellant and the transferor for a declaration that the transfer of the decree in O''S. No. 985 of 1897 was invalid, and for an injunction

restraining the appellant from executing the decree and receiving the amount deposited in Court.

Finally after a remand by the High Court the District Munsif on 29-11-09 passed a decree (which was affirmed on-appeal) declaring the

transfer of the decree in O.S. No. 985 of 1897 to be invalid and restraining'' the present appellant from executing the decree and receiving the

amount deposited in Court.

The respondent applied by an execution petition on 22-3-1912 to recover the amount with interest, from the appellant. The Lower Court

following the ruling in Shiam Sundar Lal v. Kaisar Zamani Begam ILR (1906) A. 143, held that the respondent was entitled u/s 144 of the Civil

Procedure Code, to recover the amount which she paid under the decree in O.S. No. 985 of 1897 with interest.

It is contended on behalf of the appellant that Section 144 of the CPC has no application, in as much as there is no decree which has been

varied or reversed, the decree under which the money was recovered in execution not having been reversed varied or set aside. The words of

Section 144 CPC are very wide, and the section is not confined to cases where restitution is claimed on the reversal of a decree in first or second

appeal.

Provided the decree is varied or reversed the section applies, however the reversal or variance his been effected. Reference may be made to

Shiam Prasad Roy Choudhury v. Hurro Prasad Roy Choudhury (1865) 10 M.I.A. 209 where their Lordships of the Privy Council laid down the

law thus : ""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.... 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. ""We think that

the Lower Courts'' decision cm be supported on the ground that the order of that Court pissed in E.P. No. 728 of 1904 recognising the transfer in

favour of the respondent and allowing execution to proceed, which determined a question arising between the judgment-debtor and the

representative of the decree-holder u/s 144 of the CPC was a ""decree"" as defined in the Code 1882 and that order was superseded by the

subsequent decree in O.S. No. 479 of 1904 between the same parties. The order for payment made to the appellant in execution of the first

decree and the receipt of money by him in pursuance of that order were in fact superseded by the decree for injunction granted against him in the

second suit restraining him from receiving such money. It is unnecessary for us to express a final opinion on the question whether Shiam Sundar Lal

v. Kaisar Zamani Begam ILR (1905) A. 143 was rightly decided. In tint case the subsequent decree only declared the right of the claimant to an

attached property as against the claim put forward by the decree-holder in the first suit to hive it attached. The subsequent decree did'' not grant an

injunction against the decree-holder in the first suit to refrain from selling the attached property in execution or from taking possession of it as

purchaser (if he happened to become the purchaser at the execution sale). And yet it was held by the learned Judges that restitution of possession

could be granted in favour of the successful party in the second suit by a summary application made in the first suit. We may however, say that as

at present advised we are not prepared to go to the extreme length that that decision has proceeded.

For the foregoing reasons we have come to the conclusion though not without some hesitation that the view taken by the Lower Courts is right.

The appeal is dismissed with costs.