Ummat-ul-Hasnain and Others vs Bhagwan Singh and Others

Burkitt, J.—This is an appeal in execution proceedings. It appears that the original suit was one for pre-emption in which the pre-emptor was successful and obtained a decree for pre-emption, conditional on his paying in the sum of Rs. 6,500 to the credit of the defendants by a certain date. The money was paid in, and has been drawn out of Court by the defendants. Subsequently the pre-emption decree was reversed, and the plaintiff was declared not entitled to pre-empt the property. The present proceedings have been taken u/s 583 of the CPC for restitution of the amount paid by the defeated pre-emptor and drawn out of Court by the opposite party.

There was a question as to whether the proceedings could be taken u/s 583, and one of the grounds of this appeal touches that question. It has not, however, been pressed. The other point is as to whether the present appellant, the defeated pre-emptor, is entitled to interest on the money which he deposited in Court and which was drawn out by the opposite party. The lower Court has held that he was so entitled. In my opinion that decision is right. The case of Rogers v. The Comptoir D''Escompte de Paris I L.R. IndAp 475, is conclusive on that point, and was cited on a former occasion in this Court in the case of Jaswant Singh v. Dip Singh ILR All. 432. It is true that in another case in this Court--Hatti Prasad v. Phattarpal Dubey Weekly Notes 1888, p. 287,--a single Judge of this Court took a contrary view, but in this conflict of authority I consider that I am bound to follow the authority of their Lordships of the Privy Council. This appeal therefore fails and is dismissed with costs.

I have also to consider an objection u/s 561 of the CPC by the respondents. The contention in that objection is that the respondents are entitled to a larger sum as interest than has been given to them by the Court below. That Court allowed interest only up to the date on which the High Court reversed the decree for pre-emption and refused interest subsequent to that date. The respondents objectors contend that they are entitled to interest up to the date when the money may be actually refunded to them. On the authority of the Privy Council case cited above. I am of opinion that that contention is correct, for it must not be forgotten that the opposite party drew the money out of Court and will have had the use of it until they are compelled to refund it in these execution proceedings. I must therefore allow this objection and direct the Lower Appellate Court that in further proceedings in executing this decree interest at the usual rate (6%) is to be allowed to the objectors Ummat-ul-Hasnain and others up to the date of payment in execution. The objectors are entitled to costs.