Decided on March 05,1973



- (1.) THE opposite party instituted M. S. No. 43 of 1968 for recovery of Rs. 20,000/from the petitioner. The suit was decreed and the petitioner preferred First Appeal no. 146 of 1970 from that decree to this Court. During pendency of this First appeal, the opposite party, decree-holder filed Ex. Case No. 8 of 1970 for recovery of the decretal dues and costs. The petitioner prayed for stay of the execution of the decree in the First Appeal, and stay was granted subject to the condition that the petitioner deposited costs which the decree-holder was at liberty to withdraw on furnishing security. Accordingly, the petitioner deposited Rs. 2041. 55 p. towards costs and the decree-holder opposite party withdrew the same on furnishing security. The First-Appeal was, ultimately, allowed and the case was remanded to the trial Court for fresh disposal according to law. The plaintiff- opposite party, thereupon filed an application for leave to appeal to the Supreme court which was also rejected on 1-9-72.
(2.) THE petitioner, therefore, filed an application for restitution under Section 144, c. P. C. in the aforesaid execution case for refund of the costs of Rupees 2,041. 55 p. The Subordinate Judge, Bargarh, who disposed of this application for restitution passed the following conditional order: "but all the same it cannot be disputed that since at present there is no decree against the judgment-debtor, in my opinion the decree-holder ought not to retain the money that he withdrew. Since if the decree-holder would ultimately succeed be would be entitled to the costs now with him it would be better in my opinion to pass a conditional order as below:--The judgment-debtor would be en-titled to interest on the amount deposited by him and withdrawn by the decree-holder at the rate of 6 per cent "per annum from 1-9-72 onwards if ultimately he (J. Dr.)succeeds in this Court and if the decree-holder deposits the amount within a week, hence, in which eventuality the judgment-debtor would be at liberty to withdraw the amount. The decree-holder shall not be required to pay any interest. The petition is disposed of as above," it is from this order of the Subordinate Judge that the present Civil Revision has been preferred.
(3.) IT is contended that the Subordinate Judge had no jurisdiction to pass the impugned order since law obliged the decree-holder to restitute. Section 144 (1), C. P. C. runs as follows :--"where and in so far as a decree or an order is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed, and, for this purpose, the Court may make any orders including orders for the refund of costs, and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. " this section enshrines the principle of restitution. The Supreme Court in the case of Binayak Swain v. Ramesh Chandra Panigrahi, (AIR 1966 SC 948) has enunciated the doctrine of restitution embodied in the extracted provision of law as follows:-"the principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. " in the instant case in execution of the decree of the trial Court the petitioner paid rs. 2,041. 55 as costs to the opposite party. That decree was reversed in entirety by the appellate Court which means that nothing was payable under the trial court's decree. Therefore, law imposes an obligation on the opposite party to make restitution to the petitioner of Rs. 2041. 55 which the latter had lost and this obligation arises automatically on the reversal of the erroneous trial Court decree. Thus the decision of the Supreme Court extracted above accords full support to the contention of the petitioner.;

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