ANGANNA REDDI Vs. SUBBAROYA CHETTIAR

JUDGEMENT

(1.) This appeal raises a question relating to the construction of Section 144 of the Civil Procedure Code. In O.S. No. 1 of 1924 on the file of the District Court of South Arcot, Periathambi Dorai obtained a decree against Subbaroya Chetty for money. Subbaroya Chetty had preferred an appeal to the High Court against that decree. Pending appeal the appellant before us, Anganna Reddi, who had obtained a decree in O.S. No. 11 of 1923 on the file of the Salem Court against Periathambi Dorai, had his decree transferred to the South Arcot Court and he attached the decree which Periathambi Dorai had obtained against Subbaroya Chetty in O.S. No. 1 of 1924. In execution of the attached decree the appellant, namely," the decree-holder in O.S. No. 11 of 1923, was able to realise a sum of Rs. 3,000. The result of Subbaroya Chetty's appeal to the High Court against the decree in O.S. No. 1 of 1924 was, that the High Court reversed the judgment of the Trial Court and remanded the suit for fresh disposal. The result of the fresh disposal by the Trial Court was that Periathambi Dorai's suit was dismissed. It is said that an appeal is pending in this Court against that decree dismissing the suit. In the meanwhile Subbaroya Chetty, the judgment-debtor in O.S. No. 1 of 1924, applied to the South Arcot Court for restitution against Anganna Reddi, the decree-holder in O. S. No. 11 of 1923, who as attaching decree-holder of the decree in O.S. No. 11 of 1923 had realised Rs. 3,000 from the defendant, Subbaroya Chetty. He alleged that the decree in O.S. No. 1 of 1924 having been ultimately reversed and as things stand at present, he is entitled to have restitution under Section 144 of the Code. The plea of Anganna Reddi was that the rights if any which Subbaroya Chetty had were only against Periathambi Dorai and not against Anganna Reddi. That contention of Anganna Reddi having been overruled by the Lower Court, the Lower Court allowed execution by way of restitution to proceed against Anganna Reddi in respect of Rs. 3,000 drawn by him with interest. It is against that decision that Anganna Reddi has preferred the present miscellaneous appeal.

(2.) It was argued on behalf of the appellant by his learned Advocate that the judgment-debtor Subbaroya Chetty was not entitled to any relief as against him, and that Subbaroya Chetty's relief should be sought by proceeding against Periathambi Dorai. He argued that Anganna was not the decree-holder on O.S. No. 1 of 1924 nor an assignee of the decree-holder and consequently no restitution proceedings should be started as against him. In answer to that contention, it was urged on behalf of the respondent that Section 144 read with Order 21, Rule 53(3) and Order 22, Rule 10 and also Section 146 of the Code entitled Subbaroya Chetty to relief against the appellant. Now Order 21, Rule 53(3) indicates that The holder of a decree sought to be executed by the attachment of another decree of the nature specified in Sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof; so that, this section specifically says that such attaching decree-holder shall be deemed to be the representative of the holder of the attached decree and as such entitled to execute such attached decree. Turning now to Order 22, Rule 10 which is the section prescribing the procedure to be followed in cases of assignment before final order in suits, Clause 2 of Order 22, Rule 10 provides as follows: The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-rule (1).

(3.) Reading these two provisions of law together, it is, we think, reasonably clear that the attaching decree-holder in these circumstances is the representative of the original decree-holder for purposes of execution. Restitution proceedings are essentially proceedings in execution. If as representative of the original decree- holder, an attaching decree-holder is entitled to the benefit of execution provided for by the Code, he must also be liable, similarly, as the original decree-holder to the burdens imposed upon such decree-holder; by the Code when the decree in execution of which proceedings were taken is subsequently reversed on appeal. Section 146 is also relevant in this connection. That section indicates that Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.