UNION OF INDIA Vs. UMMER SAIT

JUDGEMENT

(1.) THE appellant in the civil miscellaneous appeal and the petitioner in the civil revision petition is one and the same, namely, the Union of India, represented by the Commissioner of Income-tax, Madras. The said Union of India filed O. S. No. 21 of 1958 on the file of the Court of the subordinate Judge of salem and the same was decreed on 16th April 1960 with costs. On an appeal preferred by the respondents in A. S. 183 of 1960 on the file of this court, the appeal was allowed and that decree was set aside. Before the disposal of this appeal, pursuant to the decree in the suit, the respondents had paid the costs to the Union of India. After the disposal of the appeal, the respondents filed a petition under Order 21, Rule 11 and Section 144, C. P. Code for recovery of a sum of Rs. 3, 528, by way of restitution, being the costs paid by them to the Union of India with interest. That application was ordered by the learned Subordinate Judge on 20-4-1966, though the court restricted the amount to Rs. 3328. 25 inclusive of a sum of Rs. 807/- by way of interest on the costs. It is against this order the civil miscellaneous petition has been filed by the Union of India. Since the Union of India felt a doubt whether an appeal would be maintainable, as a matter of precaution, the civil revision petition also has been filed.

(2.) MR. Jayaraman, learned Counsel for the Union of India, advanced two arguments before me: (1) Without there being a specific direction from the appellate Court, the application for restitution by the respondents was not maintainable, and (2) in any event, the respondents were not entitled to interest on the costs paid by them.

(3.) AS far as the first contention is concerned, I have no doubt whatever that the same is absolutely untenable. The right to get restitution is a right created by the statute, flowing as a consequence of the decree being reversed by the appellate court. Whether there is any direction expressly authorising the successful party in the appeal to claim restitution or not, by the very fact of the success in the appeal, the successful party acquires a right in terms of Section 144 C. P. Code. Therefore, i reject the first contention of Mr. Jayaraman.