Anganna Reddi And Others (S 2, 4 And 5). v. Subbaraya Chettiar And Another S (Petitioner And 1St ).

This appeal raises a question relating to the construction of Sect. 144 of the Civil Procedure Code. In O. S. No. 1 of 1924 on the file of the District Court of South Arcot, Periathambi Dorai obtained a decree against Subbaraya Chetti for money. Subbaraya Chetti had preferred an appeal to the High Court against that decree. Pending appeal, the appellant before us, Anganna Reddi, who had obtained a decree in O. S. No. 11 of 1923 on the file of the Salem Court against Periathambi Dorai, had his decree transferred to the South Arcot Court and he attached the decree which Periathambi Dorai had obtained against Subbaya Chetti in O.S No. 1 of 1924. In execution of the attached decree the appellant, namely, the decree-holder in O.S No. 11 of 1923, was able to realise a sum of Rs. 3,000. The result of Subbaraya Chetti's appeal to the High Court against the decree in O.S No. 1 of 1924 was that the High Court reversed the Judgment of the trial Court and remanded the suit for fresh disposal. The result of the fresh disposal by the trial Court was that Periathambi Dorai's suit was dismissed. It is said that ah appeal is pending in this Court against that decree dismissing the suit, in the meanwhile Subbaraya Chetti, the judgment-debter in O.S No. 1 of 1924, applied to the South Arcot Court for restitution against Anganna Reddi, the decree-holder in O.S No. 11 of 1923, who as attaching decree-holder of the decree in O.S No. 11 of 1923 had realised Rs. 3,000 from the defendant, Subbaraya Chetti. He alleged that the decree in O.S No. 1 of 1924 having been ultimately reversed and as, things stand at present, he is entitled to have restitution under Sect. 144 of the Code. The plea of Anganna Reddi was that the rights if any which Subbaraya Chetti had were only against Periathambi Dorai and not against Anganna Reddi. That contention of Anganna Reddi having been overruled by the lower Court, the lower Court allowed execution by way of restitution to proceed against Anganna Reddi in respect of Rs. 3,000 drawn by him, with interest. It is against that decision that Anganna has preferred the present miscellaneous appeal.

It was argued on behalf of the appellant by his learned Advocate that the judgment debtor Subbaraya Chetti was not entitled to any relief as against him, and that Subbaraya Chetti's relief should be sought by proceeding against Periathambi Dorai. He argued that Anganna was not the decree-holder in O.S No. 1 of 1924 nor an assignee of the decree-holder and consequently no restitution proceedings should be started as against him. In answer to that contention, it was urged on behalf of the respondent that Sect. 144 read with O. 21, R. 53 (3) and O. 22, R. 10 and also Sect. 146 of the Code entitled Subbaraya Chetti to relief against the appellant. Now O. 21, R. 53 (3) indicates that “the holder of a decree sought to be executed by the attachment of another decree of the nature specified in Sub-R. 2 shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof”: so that, this section specifically says that such attaching decree-holder shall be deemed to be the representative, of the holder of the attached decree and as such entitled to execute such attached decree. Turning now to O. 22, R. 10, which is the section prescribing the procedure to be followed in cases of assignment before final order in suits, Cl. 2 of O. 22, R. 10 provides as follows:

“The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of Sub-R. (1).”

Reading these two provisions of law together, it is—we think—reasonably clear that the attaching decree-holder in these circumstances is the representative of the original decree-holder for purposes of execution. Restitution proceedings are essentially proceedings in execution. If as representative of the original decree-holder, an attaching decree-holder is entitled to the benefit of execution provided for by the Code, he must also be liable, similarly, as the original decree-holder, to the burdens imposed upon such decree-holder by the Code when the decree in execution of which proceedings were taken is subsequently reversed on appeal. Sect. 146 is also relevant in this connection. That section indicates that

“save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.”

Subbaraya Chetti would undoubtedly be entitled to take out proceedings under Sect. 144 against Periathambi Dorai, the original decree-holder. Under Sect. 146, as Anganna Reddi is the representative of Periathambi Dorai for purposes of execution, Subbaraya Chetti is entitled to take similar proceedings against Anganna Reddi. It was argued that there is a difference between the attachment of a decree and an assignment of a decree. No doubt it is so. An assignment of a decree will vest in the assignee all the rights of the original decree-holder, whereas in the case of an attaching decree-holder the section only makes him the representative of the original decree-holder to the extent necessary for the purpose of satisfying his decree. It is possible that the original decree which was attached was for an amount much larger than the amount of the decree for which that decree was attached. In the case of an assignment of a decree, this Court has laid down in Govindappa v. Hanumanthappa that an assignee decree-holder would be liable to be proceeded against under Sect. 144 in case the original decree was reversed in appeal even though the assignee-decree-holder was not a party to the final decree which reversed the lower’ Court's decree. The learned Judges observed that it was open to the assignee decree-holder to make himself a party to the appeal, and if he trusted the original decree-holder to do the needful, he could not subsequently be heard to say that he was prejudiced by not himself being a party on record in the appeal. Similarly, reading O. 21, R. 53 with O. 22, R. 10, it is reasonably clear that it was open to the attaching decree-holder to make himself a party to the appeal and, not having made himself a party, he cannot be heard to complain that the original decree-holder on record did not sufficiently represent him. The cases quoted by the appellant, namely, Kedar Nath Marwari v. Jai Berhma and Jai Berhma v. Kedar Nath Marwari (2), as also Jatindra v. Sarat (3), are not cases where a person standing in the position of a decree-holder took coercive steps to have the properties of the judgment-debtor brought to sale by processes in execution. These were cases where money decree-holders finding moneys belonging to their judgment-debtor in Court proceeded to get at the same under Sect. 73 of the Code. The Courts held, that, in the circumstances, they could not be said to be decree-holders or representatives of decree-holders in the sense that the judgment-debtor would be entitled to proceed against them in case the orders were subsequently reversed. On the other hand in Raja Rao v. Anantanarayanan Chetty (4) the Officiating Chief Justice remarks as follows:

“The decree-holder in that case was the person responsible for wrongfully bringing the properties to sale. In the present case, refund is asked for from persons who had nothing to do with causing the auction sale, but merely profited by it in the way of rateable distribution under the orders of the Court. This distinction seems to me to be of considerable importance in connection with the exercise of extraordinary powers which are of a purely equitable and discretionary nature.”

Courts, in exercising jurisdiction under Sect. 144, do so by virtue of the equitable jurisdiction to set right the injustice caused by the lower Courts passing erroneous decrees and by allowing proceedings to be taken thereunder. In such cases it has been pointed out that it is the duty of the Court as far as possible to restore parties to the position in which they would have been had not the erroneous orders been passed. No doubt in the anxiety to work out justice, a Court should not, in the exercise of powers under Sect. 144, work out injustice in particular cases. Having regard to the facts in the present case, we are not in a position to say that the lower Court was not entitled to pass orders directing the appellant to restore the benefit that he received by executing the decree in O. S. No. 1 of 1924.

The order passed by the lower Court is accordingly right, and we dismiss the appeal with costs. The respondent will however be directed not to draw the money from the lower Court for a period of one month from this date. The stay petition is dismissed.

N. R. R.Appeal dismissed.