P L D 1961 Dacca 686 (PLP)

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144. Application for restitution :‑ "(1) Where and in so far as a decree 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 such part thereof as has been varied or reversed; and for this purpose, the Court may make any order, including order 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. (2) No suit shall be instituted for the purpose of obtain ing any restitution or other relief which could be obtained by application under subsection (1)."

7. It is clear from the above provisions that in case of variation or reversal of a decree the Court of first instance is directed to place the parties in the position which they would have occupied but for such decree or part thereof as has been varied or reversed. If in implementing the above direction the Court finds that in the facts of a particular case an execution sale is to be set aside, and the property restored to the judgment‑debtor the Court has not only the power, but it is its duty to do so. If, for instance in the cases before me, the Appellate Court had reversed the decrees in their entirety, and found that nothing was due to appellants, the competency of the Court to set aside the sales, and restore the properties to the respondents could not be questioned. It would then have been the duty of the Court to set aside the sales, and restore the properties to the respondent in order to place the respondent in the position which he would have occupied but for the reversed decree. Mr. Sarkar also concedes that if the decree is‑ reversed in its entirety the sale in execution of the decree so reversed must be set aside, and the property sold must be restored to its owner. It follows that there is no substance in the first contention of Mr Sarkar that the execution sale having taken place at a time when there was a good, valid and subsisting decree. such sale cannot be set aside, l0cause the decree has been reversed sub sequent to the sale. It is next contended by the learned Advocate that if any part of the decree of the trial Court is maintained by the Appellate Court, the part so maintained will furnish foundation for the execution sale, and such sale cannot be set aside, and the property sold restored to the judgment‑deb tor unless the judgment‑debtor is able to satisfy the Court that at the date of the sale he could and would have saved the property by paying off the decretal amount, if the sale had been held for realisation of the amount which was ultimately found due by the Appellate Court. The principle of law sought to be enunciated by the learned Advocate for the appellant is well‑founded, both on the language of section 144 of the Code of Civil Procedure, and the authorities cited before me. But the' real difficulty is in the application f the principle to the facts of a particular case. Where, for example, a decree for Rs. 5,000 is passed by the trial Court, and properties of the judgment‑debtor of that value are pur chased by the decree‑holder in course of execution of that decree, there can be no doubt that on the reversal of the entire decree by the Appellate Court, the sale should be set aside and the properties restored to their owner. If, however, instead of the entire decree being set aside by the Appellate Court an insigni ficant part of the trial Court's decree is maintained by the Appellate Court, say to the extent for Rs. 50 out of Rs. 5,000, and the rest of the decree of the trial Court for Rs. 4,950 is set aside, can the execution sale of properties worth Rs. 5,000 be maintained? In my opinion, the answer must be in the negative If again, the Appellate Court modifies the decree of the trial Court by reducing the decretal dues to, let us say, Rs. 4,000, from Rs. 5,000 should the sale be set aside, and the properties restored to the judgment‑debtor? The answer again will be in the negative unless the judgment‑debtor can satisfy the Court that if the original decree was for Rs. 4,000 instead of for Rs. 5,000 he could and would have saved the property from sale by paying off Rs. 4,

000. The instances I have given above illust rate the principles as laid down in the cases cited at the Bar, which I now propose to discuss.

8. In the case of Doyal Sarkar v. Tari Dashi and others the plaintiff obtained a decree in the trial Court for possession of certain lands and for costs amounting to Rs. 49‑8‑6 pies. The Appellate Court varied the decree by disallowing the plaintiff's claim to some lands, and by proportionately reducing the costs to Rs. 36‑7‑9 pies. Before the appeal was disposed of, the decree- holder put the decree for cost into execution in course of which two jotes of the judgment‑debtor were purchased for Rs. 35 and Rs. 15, respectively. The question that arose for decision was if the judgment‑debtor was entitled to restoration of the two jotes as the decree for costs had been varied from Rs. 49‑8‑6 pies to Rs. 36‑7‑9 pies. The answer returned by their Lordships Rankin, C.J , and Pearson, J. was in the negative. Their Lordships say as follows : "It appears to me that as a matter of construction of sec tion 144 the decision in Bezwada Sunderarma Reddi v. Enuga Raghava Reddi (1921) 42 M L J 315, is correct, and that the respondents before us cannot recover property which was sold in execution. except upon showing that the sale of the last of the two jotes was in substance and in truth a consequence of the error in the original decree. They cannot now be restored to the possession of any thing unless it is made to appear that but for the fact that the trial Court awarded Rs. 49‑8‑6 as costs instead of Rs. 36‑7‑9 only, they world now be in possession of the jotes. We have to `place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed'. These words have to be applied with atten tion to the substance and reality of the matter. It makes no difference in my judgment whether the decree of the Appellate Court is expressed by saying that the trial Court's decree be varied by reading Rs. 36 instead of Rs. 49, or whether it is expressed by saying that the trial Court's decree is set aside, and in lieu another decree is made for the smaller sum. "On this view it appears to me that the learned Munsif has approached the present case from the correct point of view, and that the order of the learned Subordinate Judge cannot stand. The evidence discloses that the first jote to be sold fetched Rs. 35 only. A judgment‑debt of Rs. 36‑7‑9, with cost of execution, would amount, as the Munsif states, to some 40 rupees, so that by the sale of the first jote the small sum of Rs. 5 was left unsatisfied. In these circumstances, the decree- holder would have been quite entitled to proceed to sell the second jote which in fact was sold for Rs.

15. There is no evidence at all to show that the judgment‑debtor could or would have saved the first jote, had the debt been treated as being Rs. 40 instead of Rs.

50. He did nothing to save the second jote on the footing that Rs. 15 was still due. The question is whether we are entitled to say that for Rs. 5 the judgment‑debtor would have saved the second jote. What a person would have done is a matter not always capable or con clusive proof, and if the judgment‑debtors, or either of them, had given evidence of the fact for Rs. 5 they would have saved the second jote. I should have been desirous of believing them. They gave no such evidence, however, and I am not satisfied that they gave any real attention to this matter of the execution sale so as to know what the lust jote fetched; and to be in a position, if possible, to save the second. So far from being satisfied that the second jote would not have been sold if the original decree had been for the correct amount, I am of opinion that the amount by which that sum was in excess is no part of the circumstance which brought about the ' sale of both the jotes."

9. In course of the review of decisions of different High Courts their Lordships approved of the view of the Madras High Court taken in the case of Bezwada Sunderarma Raddi v. Enuga Raghawa Reddi, from which their Lordships quoted the following passage "It was argued that any reduction in the amount of a decree effects the position of the judgment‑debtor, inasmuch as it renders it easier for him to satisfy the decree, and prevent the sale of his property in execution. No doubt where the reduction is large this may be so; and whether it is so or not, must be a question of fact." '

10. In the case of Baraboni Coal Concern, Ltd. v. Deva Prasanna Mukherjee and others, a decree for Rs. 1,54,000 was reduced by the Appellate Court to Rs. 1,46,

000. The execution sale was of a property for Rs. 53,

000. Their Lordships Mitter and Edgley, JJ., approved of the decision reported in 35 C W N 1298 and said "There is no evidence that any of the judgment‑debtors would have or could have paid him up if the decretal amount was Rs. 1,46,000 odd, instead of Rs. 1,58,000 odd. In the circumstances judgment‑debtors could not have obtained resti tution of the property." In the case of Maganti Venkataswami Naidu v. Annapareddi Nagireddi, the original decree was for Rs. 3,031‑7‑

0. It was reduced to Rs. 2,335‑10‑0 with interest at 12 per cent. The execution sales fetched a sum of Rs. 2,

640. Their Lordships; Wadsworth and Patanjali Sastri, JJ., held that it would appear that the total amount for which the properties were sold approximated very closely to the amount which had been ultimately found due, and in such circumstances there was no case for restitution.

11. In this case of Kuppa Sankara Sastri and others v. Kakumanu Varaparasad and another, originally a decree was passed for Rs. 4,119‑7‑

4. Two sales in execution of the decree fetched the sums of Rs. 1,900 and Rs. 2,225, respectively. The decretal amount was ultimately reduced to Rs. 2,

469. His Lordship Wadsworth, J. refused to restore the properties sold in execu tion to the judgment‑debtors on the ground that the sales would have been held all the same even if the Court of first instance had decreed amount eventually found to be due on appeal.

12. In the case of Mulukulla Kumaraswami v. Chantasala Mahalakshmamma and another, at the time of the execution sale the decretal amount with costs stood at Rs. 1,131‑5‑

5. The pro perties were sold for Rs. 1,

010. The decree after subsequent scaling down stood at Rs. 621 odd. His Lordship Govindaraj achari, J. held that it could not under the above circumstances be said that if the decree had been scaled down before the sale, there would have been no need to sell the property. Lastly, in the case of Lal Bhagwant Singh v. Sri Kishen Das, their Lordships of the Supreme Court of India approved of the decision of the Calcutta High Court in the case of Doyal Sarkar v. Tari Dashi and others, and held that "the judgment‑debtor was not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree."

14. If I may say so with respect, it seems to me that in view of the provisions of section 144 of the Civil Procedure Code, the correct principle as to restitution has been laid down in the cases 35 C W N 1298, 42 C W N 1032, and A I R 1953 S C 136, and the Single Bench decisions of Madras High Court reported in A I R 1948 Mad. 12 and A I R 1949 Mad. 272, to the extent that they depart from the principle laid down in the above cases must with respect be held to be erroneous.

15. It now remains to examine the two cases cited by Mr. De. The case of Nawab Zain‑ul‑Abdin Khan v. Muhammad Asghar Ali Khan and others, is not in point at all. All that was laid down by the Judicial Committee in that case was, as has been pointed out by Rankin, C. J., "that a variation :or reversal of a decree does not affect the sale, if the purchaser is no party to the decree."

16. In the case of Maung Bon Gyi v. Mangwe Bou a decree was originally passed for Rs.

550. Sale of certain properties was held in execution of the decree. The decree was, however, subse quently modified by the High Court by reduction of the decretal amount to Rs. 110 only. The judgment‑debtor thereafter paid Rs. 115 into Court, and prayed for restoration of the properties. It was held that the judgment‑debtor was entitled to the relief. In my opinion, the actual decision can be supported on the principle of law laid down in 3 5 C W N 1298; 42 C W N 1032 and AIR 1953SC136.

17. In the case before me, the original decrees for Rs. 2500 each have been reduced to Rs. 120 each by the Appellate Court. In view of the principles of law discussed above, the judgment- debtor would be entitled to restoration of his properties on proof that he could and would have paid off the reduced amount of Rs 120 if the decree was originally passed for that amount. Mr Sarkar argues very vehemently that there is no evidence to the above effect, and, as such, the judgment‑debtor's prayer for res toration must be rejected. I think, however, that the interests of justice require that the judgment‑debtor should be given a further opportunity to make out a case of restoration, if he can, and I propose accordingly to send back the case to the trial Court for enabling both the parties to adduce any further evidence they may choose to adduce.

18. The result, therefore, is that these appeals are allowed. The judgments and orders of both the Courts below are set aside and the cases are sent back to the Court of first instance for trial de novo on the evidence already on record, and such further evidence as both the parties might choose to adduce, and for dis posal of the case in accordance with law in the light of the obser vations made in this judgment. Costs of these appeals will abide the result. K. B. A. Appeal accepted Case remanded.