KOYITHODI AMIKUTTY UMMA Vs. VIRUTHIYAM PARAMBATH RAMOCHEN NEDUNGADI AND ANR.

JUDGEMENT

(1.) THERE are two points for determination in this second appeal. The first is whether the lower appellate Court was right in holding that the petitioner, conceding that he is entitled to restitution of any amount owing to the -alleged variation of the decree in O.S. No. 256 of 1937 could get the decree transferred from the Parappanangudi District Munsiff Court, which passed the decree, to the District Munsiff's Court, Calicut, for getting such restitution. The second is whether in fact, the decree in O.S. No. 256 of 1937 against the appellant was varied, and he was entitled to restitution of the original decree amount which he -had deposited. The first is a question of law, and the other is a mixed question of law and fact.

(2.) BY consent of both sides the question of law has been argued here. I am unable to agree with the finding of the lower appellate Court that a person entitled to restitution, by virtue of a variation in the decree amount, due to scaling down under the Madras Agriculturists' Relief Act, will not be entitled to get the decree transferred to another Court for execution under Section 39 of the Civil Procedure Code. The law has always proceeded on the footing that any person entitled to recover any amount under a decree will be in the position of a decree -holder to that extent. " Decree -holder " has been defined in Section 2(3) of the Civil Procedure Code

(3.) I , therefore, set aside the order of the lower appellate Court and remand the appeal to the lower appellate Court for fresh disposal after finding out whether the appellant is entitled to any restitution on the facts. In the circumstances, the costs in this second appeal will abide and be provided for by the lower appellate Court when disposing of the appeal afresh.