An application for restitution under Section 144 of the Code of Civil Procedure is not an application for execution of the appellate decree or order but is an application praying to the Court to adjudicate upon the rights of parties and to grant a decree to the aggrieved party embodying the benefit that he is found entitled to under the context of the decree or order already executed and the same having been subsequently varied or reversed.

( 1 ) THESE two appeals are directed against two Identical orders passed by the District judge, bangalore, on two applications in two different proceedings, one in Execution Case No. 52 of 1952-53 and the ofher In Miscellaneous Case No. 87 of 1952-53 tiled by the Respondent praying that the appellant be directed to refund the amount of Rs. 2,010/- withdrawn by him from the deposit in Court on 7-2-1955, on the ground that the order on the strength of which he had withdrawn the amount had been set aside In appeal. The learned District Judge has granted the petitions and directed the appellant to redeposit the amount within 15 days.

( 2 ) THE facts necessary for the appreciation of the points in dispute are few and undisputed, one ea Read who was an employee in the Kolar Gold fields and was entitled to Rs. 7,588-3-0 towards his Provident Fund Contribution from the Undertaking, was indebted to the appellant ratanchand as also to the Respondent Multanmur. Multanmull had taken a bond from Read On 1-2-952 creating a charge on his Provident Fund for Rs. 1,626-10-9 with interest. He instituted o. S. 114 of 1952-53 in the court of the Munsiff at Kolar for the recovery of the aforesaid amount with interest and costs and obtained a decree. Ratanchand also instituted O. S. 18 of 1952-53 in the District Court at Bangalore against Read for recovery of certain amounts and secured an order of attachment of the Provident Fund before judgment. Multanmull preferred a claim in mis. Case No. 87 of 1952-53 in the Court if the Principal District Judge, Bangalore, against the order or attachment on the ground that he had a prior charge on the Provident Fund amount. His claim was allowed by the Court on 19-1-1953 declaring that the attachment shalll continue subject to the charge created in 0. Section 114 or 1952-53 in favour of Multanmuil. Ratanchand then instituted O. S. 15 of 1954 in the Court of the Munsiff at Kolar Gold Fields for setting aside the order passed by the district Judge in Mis. Case No. 87 of 1952-53 and obtained a decree; in the strength of that decree, he withdrew the entire amount of the Provident Fund including the portion in respect of which Multanmull had been declared to have had a charge under his decree. Multanmull preferred an speak as Regular Appeal No. 186 of 1954 in the court of the subordinate Judge, Kolar and succeeded in getting a decree in his favour on 20-1-1956. Ratanchand preterrea a Second Appeal against Multanmull In Section A. 299 of 1956 and obtained a stay order. The appeal was summarily Dismissed on 6-12-1956. Thereafter, multanmull filed two petitions in the Court of the Principal District Judge. Bangalore, against ratanchand on 2-12-1959 under Sections 144 and 151 of the Code of Civil Procedure praying for an order directing Ratanchand to redeposit the amount drawn by him from the Court

( 3 ) THESE applications were opposed by Ratanchand on the ground that Multanmull was not a party either to the suit or to the execution proceedings in which he had withdrawn the amount and was not therefore entitled to me the petition for refund. He also pleaded that the petitions were barred by time.

( 4 ) THE learned District Judge held that the application for restitution was tenable as the expression 'any party entitled to any benefit by way of restitution or ofherwise' occurring in section 144 of the Code of Civil Procedure included the petitioner and that the petition filed, by hirn within three years from the date of dismissal of the Second Appeal was well in time. He accordingly directed the appellant to redeposit the amount.

( 5 ) IN the appeal, the first question that was submitted for our consideration is that Multanmull should have filed his application for restitution in the Court of the Munsif, Kolar Gold Fields as that Court is 'the Court of the first instance' contemplated by Section 144 of the Code 01 civil procedure. Section 144 (1) reads thus:

"where and in so far as a decree or an order is varied or r

Click Here to Read the rest of this document