[138] Edge, C.J and Blair, J.:— In his appeal in this Court one Bir Bhaddar obtained a decree reversing the decree of the Subordinate Judge of Gorakhpur with costs. Bir Bhaddar was a defendant in the suit. The plaintiff appealed to Her Majesty in Council making Bir Bhaddar the respondent to his appeal. Her Majesty in Council set aside the decree of this Court and restored with costs the decree of the Subordinate Judge of Gorakhpur. Now on the 2nd of December 1887, the plaintiff in the suit presented his application to this Court for a certificate under s. 599 of the Code of Civil Procedure. The certificate was granted in January 1888. On the 24th of December 1887, Bir Bhaddar had assigned the decree for costs which he had obtained in this Court to Madho Ram. The appeal to the Privy Council was admitted on the 25th of July 1888. The order of Her Majesty in Council was dated the 15th of March 1893. The plaintiff in the suit had notice long before the termination of the appeal to Her Majesty in Council that Madho Ram was the assignee of Bir Bhaddar's decree for costs, and, long before the determination of the appeal to Her Majesty in Council, Madho Ram in his lifetime, and subsequently Jamna Prasad, the appellant here, as Madbo Ram's representative, executed, under s. 232 of the Code of Civil Procedure, the decree of the High Court for costs against the plaintiff and obtained satisfaction of that decree. The plaintiff took no steps to bring either Madho Ram, or, after his death, his representative Jamna Prasad, on the record of the appeal to Her Majesty in Council. The plaintiff now seeks under s. 583 of the Code of Civil Procedure to obtain restitution from Jamna Prasad of the costs which he paid under the decree of the High Court to Madho Ram and Jamna Prasad.
Assuming for the present purposes, but not deciding, that s. 583 of the Code of Civil Procedure would apply to a decree passed in an appeal to Her Majesty in Council, we are of opinion that the plaintiff in the suit cannot have execution of the decree of Her Majesty in Council against Jamna Prasad personally or against him as representative of Madho Ram. Neither Madho [139] Ram nor Jamna Prasad was made a party to the appeal before Her Majesty in Council; and it appears to us that, as neither of them was a party to that appeal, and as Her Majesty in Council did not order that Jamna Prasad personally or as representative of Madho Ram should make restitution, the order of Her Majesty could not be executed so far as Jamna Prasad is concerned.
No case has been brought to our attention in which a decree was held to have been executable under s. 583 for restitution against a person who could have been made, but was not made, a party to the appeal in which the decree was passed. We have been referred to the decision of this Court in Kishen Sahai v. The Collector of Allahabad(1). In appears to us that case was not in point. In that case the order of Her Majesty in Council set aside the decree of the Sadr Court and restored and affirmed the decree of the District Judge, although one Banke Lal, who had derived a material advantage as a litigant in the suit from the decree of the Sadr Court, was not a party to the appeal to Her Majesty in Council. It does not appear whether or not their Lordships of the Privy Council when they delivered their judgment advising Her Majesty to set aside the decree of the Sadr Court and to restore and affirm the decree of the District Judge Were aware that in so doing they were advising that the decree which Banke Lal had obtained from the Sadr Court should betaken away from him, although he was not a party to the appeal to Her Majesty in Council. All that can be said about that case is that Her Majesty in Council having set aside the decree of the Sadr Court, reinstated and affirmed the decree of the District Judge, and under that decree Banke Lal as a party to it was liable.
This Court has, we believe, invariably declined in appeal adversely to alter the position of a decree-holder who has not been a party to the decree before it. We think it would be dangerous to depart from that principle. We dismiss the appeal with costs in this Court and affirm the order of the Court below.
Appeal dismissed.