HARINATH CHOWDHURY Vs. HARA DAS ACHARJA CHOWDHURY

JUDGEMENT

(1.) The problem which requires solution in this appeal may be concisely stated. On the 30th June 1909 A sued B for recovery of money. On the same day A obtained an order for "attachment before judgment under Rule 5 of Order XXXVIII, Civil Procedure Code. The property attached was a debt due obviously from C to D; but the debt was attached on the allegation that B, and not D, was the person beneficially interested in it. The result was that a prohibitory order was issued upon C. On the 13th August 1909 A obtained an ex parte decree in his suit against B. C was then called upon to pay into Court the money due from him ostensibly to D. On the 8th October G applied to the Court and intimated that he was willing to bring the money into Court, provided he was absolved from liability to pay a second time to D and provided also that interest ceased to run upon his debt from that date. The Court thereupon ordered that the money, if deposited, would be retained in Court till the adjudication of the question, whether It or D was beneficially interested therein. On the faith of this order the money was brought into Court on the 13th December 1909. Thereafter, without notice to C or D, the Court on the application of A paid out the money to him. D, who had no intimation of these proceedings, subsequently sued C and recovered judgment against him on the debt. G now sues A to recover the money which he had deposited in Court and which, without notice to him or to his creditor D, had been withdrawn by A, The Courts below have decreed the c]aim and A has appealed to this Court. The substantial question in controversy on the merits in tins litigation consequently, plainly, is whether B or D was beneficially interested in the debt. The Courts below have concurrently answered this against A, and have found that B had no interest in the money, in other words, that not B but T) was the real creditor of C. This is a finding of fact which cannot be successfully challenged in second appeal, indeed no attempt has been made to assail it before us; but the question has been mooted, has G any cause of action against A? On behalf of A it has been argued that there is no cause of action, ffrst, because the money was recovered undter compulsion of legal process, and cannot accordingly be recovered by any form of suit; and, secondly, because by virtue of Order XXI, Rule 46, of the Code of Civil Procedure, the money, as soon as deposited, ceased to be the money of the plaintiff; and that consequently, he is not entitled to recover it back. In our opinion there is no foundation for either of these contentions.

(2.) As regards the first ground, it is clear that the principle of the rule in Marriot v. Hampton 7 T.R. 269 : 2 Smith s Leading Cases 421 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969, which has been the bulwark of the arguments for the appellant, is of no real assistance to his cause. The principle is that where money has been paid by the plaintiff to the defendant under compulsion of legal process, which is afterwards discovered not to have been due, the plaintiff cannot recover it back in an action for money had and received. The foundation of this doctrine was thus stated by Lord Kenyon: "After a recovery by process of law, there must be an end of litigation, otherwise there would be no security for any person." To the same effect is the observation of Grose, J.: It would tend to encourage the greatest negligence if we were to open a door to parties to try their causes again, because they were not properly prepared the first time with their evidence." Lawrence, J., added that if the case alluded to, that is the decision of Lord Mansfield in Moses v. Macferlan 2 Burr. 1005 : 1. W. B1. 219 : 97 E.R. 676 be law, it would go the length of establishing this that every species of evidence which was omitted by accident to be brought forward at the trial might still be of avail in a new action to overrule the former judgment, which is too preposterous to be stated. The principle was strain formulated by Patterson, J., in Cadaval v. Collins 4 A. & E. 858 at p. 866 : 111 E.R. 1006 at p. 1009 : 6 N. & M. 324 : 2 H. & W. 54 : 5 L.J.K.B. 171 : 43 R. 499: " Money paid under compulsion of law cannot be recovered back as money had and received. And, further, where there is bona fidef, and money is paid with full knowledge of the facts, though there be no debt, still it cannot be recovered back." Are refer to this statement in order to emphasize the qualification to the general rule formulated in the following terms by Kennedy, J., in Ward and Co. v. Wallis (1900) 1 Q.B. 675 : 69 L.J.Q.B. 423 : 82 L.T. R16 T.L.R. 193; "There must be bona fides on the part of the party who has got the benefit of his opponent s payment in order to bring the principle laid down in that case Marriot v. Hampton 7 T.R. 269 : 2 Smith s Leading Cases 421 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 into force; if the person enforcing a payment, under legal process has therein taken an unfair advantage or acted un- conscientiously, knowing that he had no right to the money, the principle laid down in Marriot v. Hampton 7 T.R. 269 : 2 Smith s Leading Cases 421 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 may not prevent the defendant from recovering the money back."

(3.) Let us examine the application of this principle to the circumstances of the present case. Here money was deposited by the plaintiff G on the faith of an order which stated explicitly that the money would be retained in Court pending the determination of the question whether the money belonged to B, the then judgment-debtor of A, or to D, the alleged creditor of the depositor C. That inquiry was never made, but the Court, without notice to the depositor and his alleged creditor, paid out the money to the present defendant on his application. So that neither G nor I) was allowed an opportunity to defend his rights. We need not hold that this conduct of A was in any way designedly fraudulent, but this much is plain that he was able to appropriate the money by what constituted a grave abuse of the process of the Court. The principle of the decision in Harriot v. Hampton 7 T.R. 269 : 2 Smith s Leading Cases 421 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 has no application to these circumstances.