Judgement

Consolidated Appeal and Cross-appeal (No. 40 of 1919) from a judgment of the High Court (December 15, 1916) varying a decree of the District Judge of Kristna at Masulipam.

The appeals related to the amount of principal and interest which the defendants (appellants in the

Law. Rep. 48 Ind. App. 150 ( 1920- 1921) Venkatadri Appa Row V. Parthasarathi Appa Row

48

main appeal) were entitled to recover from the plaintiff (respondent in the main appeal) by way of restitution in respect of money paid under a decree of the High Court which was reversed upon appeal to the Privy Council. The facts relevant to the appeal and cross-appeal appear from the judgment of their Lordships.

1921. March 1. De Gruyther K.C., Dube, Narasimham, and Palat for the appellants. The High Court was wrong in holding that the sums received had been appropriated by the appellants against the principal due. There was no appropriation by either party. That being the case the ordinary rule applies that the payments should first be applied in discharge of the interest due Bamundoss Mookerjea v. Omeish Chunder Raee (( 1856) 6 Moo. I. A. 289.) ; Maharaja of Benares

v. Har Narain Singh. (( 1905) I. L. R. 28 A. 25.)

Sir Erle Richards K.C. and Parikh for the respondent and cross-appellant. When the respondent lost the Medur estate under the judgment of the Board, he had assets to his credit in respect of the Nidadavole estate. That being so, the ordinary rate in respect of the application of sums received could not properly be applied. Further, under s. 144 of the Code of Civil Procedure the High Court had a discretion in the matter depending upon all the circumstances of the case. The Court was not bound by any rule Thompson v. Hudson (( 1870) L. R. 10 Eq. 497.) ; Bower v. Marris. (( 1841) 1 Cr. & Ph. 351.) The cross-appeal is upon two grounds. First, the District Judge rightly held that interest should only run on that part of the original debt as represented principal. Secondly, interest should have been charged against the respondent only at the bank rate. Sect. 144 is a restitution section ; if the money had not been paid over to the respondent it would have earned bank rate only.

No reply was called for.

The judgment of their Lordships was delivered by

LORD BUCKMASTER. Their Lordships do not desire to hear counsel for the appellants in reply, nor do they need further time to consider the advice that they will tender to His Majesty, for in their opinion this case is quite plain. It appears that in 1899 the respondent instituted a suit the defendants to which are represented by the present appellants; he claimed partition of two estates, known as the Nidadavole estate and the Medur estate, asserting that he was entitled to a one-third share in each. The District Judge, by whom the action was first heard, decreed in the plaintiffs favour with regard to the first estate, but against him with regard to the other. An appeal was taken from that decree to the High Court, who varied it by declaring that the plaintiff was entitled to one-third of the second estate as well as of the first. A receiver having been appointed of the rents of both estates on February 14, 1907, the plaintiff obtained an order enabling the receiver to pay over to him his interest on the Medur estate under the judgment of the High Court as it then stood. Unfortunately for him the uncertainties of litigation resulted in a decree of His Majesty in Council on December 19, 1913, restoring the judgment of the District Judge and it consequently followed that the share of the property in the Medur estate which he had received from the receiver was money which he was bound to restore. The representatives of the original defendants accordingly applied to the District Court for restitution, asking for repayment out of the moneys in the receivers hands, representing the plaintiffs share in the Nidadavole estate and against him personally for the balance. The matter came before the District Judge, wh