9911796707
TMI Blog1962 (6) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... t were to deposit the entire amount in the lower court within a specified time. It was also provided that the decree-holder could draw the amount deposited on furnishing security for repayment in case the appeal in this Court should succeed. There was however no restriction regarding the decree for costs which was paid over. In due compliance of the order of this Court, the respondent deposited the balance of the decree amount in the trial court. The decree-holder did not draw that amount by furnishing security therefor, with the result that the amount deposited continued to remain with the Court. 2. The respondent succeeded in the appeal to a large extent; this Court found that on a proper taking of the accounts after applying the provisions of Madras Act IV of 1938, only a sum of ₹ 562 would be payable by the respondent to the creditor. The decree of the lower Court was varied by making that amount alone payable; the costs payable by the respondent was reduced to ₹ 108-9-5. The respondent thus became entitled to restitution to the extent the decree of the lower Court was set aside. The money that was lying in court was paid back to the extent he was entitled. But h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. But the mere restoration of what a party lost under a decree of order which is later set aside might not secure to him complete justice. Restitution properly so called is restoration to the original state which would include reparation for the injury done. Section 144, C. P. C., recognises this when it says that for the purpose of placing the parties in the position which they would have occupied but for the decree that had been set aside, the Court would have powers to direct payment of interest, damages, mesne profits etc. Essentially therefore restitution is doing justice between the two parties. It will be appropriate in this context to refer to the following passage in the judgment of Subramama Iyer, J. in Doraiswami Iyer v. Annasami Iyer ILR 23 Mad 306. The principle of the doctrine of restitution is that on the reversal of a judgment, the law raises an obligation in the party who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost. This obligation, it is the duty of the Court to enforce unless it is shown that restitution would be clearly contrary to the real justice of the case. The principle has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not withdraw the amount. In such a case, that is where a decree has not been allowed to be executed according to its terms but a condition or restriction is placed in relation thereto, the question of compensation to the injured party should in our opinion be decided according to the circumstances of each case. 4. In ILR 55 Mad 1025 :: AIR 1933 Mad 33, the learned Judges held that the word restitution only implied restoration to the injured party of what he had lost in the consideration of which no question of benefit secured by the other party would arise and as it was imperative on the Court to restore him to the position which the former would have occupied but for the wrong decree, the latter should be made liable to pay interest on the money which he could not have drawn except on furnishing security. If the principle of restitution is that of doing real justice between parties it is difficult to understand how the party could be compelled to pay interest on the money Which was not really available to him, he being not compellable to furnish security and draw the amount. In the leading case on the question of restitution Rodger v. Comptoir D'escompte De Paris, (1869) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor suffers a detriment in that he had to deposit the money which he would have utilised but for the erroneous decree: (2) the decree-holder by reason of the impediment placed on his drawing the amount, is unable to utilise the money which in the interests of the judgment-debtor or of both the parties is allowed to remain in court. In such a case can it be taken as an invariable rule that the decree-holder should pay interest on the amount lying in court? From the point of view of the debtor he should: but justice between the parties may not always lie in that direction. 5. On behalf of the respondents reliance is placed on the decisions in Collector of Ahmedabad v. Lavji Mulji, ILR 35 Bom 255, Ashutosh Goswani v. Upendra Prasad Mitra, 24 CLJ 467 : AIR 1917 Cal 188 and Hirabhai v. Maneklal, AIR1925Bom313 . In none of those cases was there any obstacle placed on the decree-holder getting the money from Court He could have obtained the money deposited in Court and there was undoubtedly an injury to the judgment-debtor by his not drawing the money. The decision in Dalu Ram v. Ramanand,: AIR1929Pat593 , however, supports the respondent. In that case execution of the trial court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him and that can be done only by requiring the decree-holder to pay interest on the money. This principle has been applied without qualification where either the money has been actually paid over to the decree-holder or has been deposited in Court and no conditions have been imposed or difficulties placed in the way of the decree-holder drawing out that amount. If the money has really been made available to the decree-holder he would be bound to pay interest if the decree is reversed. 6. The other principle is this. Even though the money has been deposited into Court, but the deposit has been made subject to a condition like furnishing security which the decree-holder may be unable or unwilling to comply with or other difficulties are placed in the way of the decree-holder with the result that the money was really not available to him at all then he would not be required to pay interest; and the reason of the rule is that to do so would be to require him to pay for an advantage which he never really enjoyed through no fault of his own. That the existence of an obstacle placed at the instance of one party (e.g. a condition like furnishing security) would disentitle that party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree and there is an obstacle to the withdrawal of the amount like furnishing of security, but the decree-holder furnishes such security and draws the amount. (Really in such a case the obstacle must be held to have been removed albeit by the act of the decree-holder who thereafter will have the benefit of the money); 4. Where money is deposited towards the decree and there is an obstacle placed like furnishing of, security but the decree-holder either because he is unwilling to or unable to furnish the required security, allows the money if remain in Court and does not use it. In the first two of the four cases, the decree-holder would be bound to pay interest on the amount which he is obliged repay from the date of payment or deposit. In the third class of case he will be bound to pay interest on such amount from the date when the .obstacle is removed as laid down in AIR 1943 Paf 427. In all the above cases, there is a correlation between the benefit to the decree-holder and the detriment to the other party. 10. The fourth class of cases presents a difficulty. Normally speaking the decree-holder would not be liable for interest on moneys which he could not take on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
