We are unable to agree with the Subordinate Judge that the application is barred as res judicata. The previous application was for the restitution of a sum of money recovered in execution in consequence of the decree having been reversed on appeal. The present application is for interest on the money for the period during which the counter-petitioner had the use of it.
We do not think that the principle of constructive res judicata, whether Sect. 11, Explanation IV or O. 2, R. (2) of the Code of Civil Procedure is invoked in its aid, should be applied to execution proceedings as a matter of course. As we said recently in A. A. A. O. No. 57 of 1916 on the file of the High Court, unless the decision of the question subsequently sought to be agitated was either expressly given or must be deemed to have been necessarily implied in the previous decision, the principle of res judicata should not be applied to execution proceedings. See Lakshminarayana v. Pallamraju.
Mr. Muthiah Mudaliyar contended that an application for restitution is not in execution. He pointed to the change of language between Sect. 583 of the previous Code of Civil Procedure and Sect. 144 of the present Code. We are unable to see the difference. Sect. 144 of the present Code has been so framed as to enable the successful party in the appellate Court to be placed in status quo ante. The language of Sect. 583 of the old Code was not wide enough to cover all oases of benefits arising from the reversal of a decree being fully realised by the successful party. Apart from this change, we see no ground for holding that the Legislature intended to make any departure in the procedure by which restitution is to be obtained. Under the Old Code, it was by way of execution. See Prag Narain v. Kamakhia Singh. The same rule applied to similar application under the New Code. The language of Sect. 47 of the Code would cover all cases of restitution. The party seeking the aid of the Court is agitating a question relating to the execution of the decree under which the other party deprived him of his property.
We entirely agree with the decision in Balasubramania Chetti v. Swarnammal that O. 2, R. 2 of the present Code of Civil Procedure, does not govern restitution applications. The present application is really for damages for the appellant having been deprived of the use of his money during a particular period. We must, therefore, reverse the order of the Subordinate Judge. We think the appellant is only entitled to 6 per cent. interest on Rs. 1,881-1-3 from the 8th of September 1911 to the 28th of October 1914. Parties will pay and receive proportionate costs in this and in the Court below.
M.RAppeal allowed.