The main legal point established in the judgment is that the court has the jurisdiction to award interest in appropriate cases as part of the restitution under S.144, C.P.C.

T.S. Krishnamoorthy Iyer, J.

1. The appeal filed by the plaintiff in O. S.143 of 1958 on the file of the Sub Court, Cochin, arises out of a proceeding for restitution under S.144, C.P.C.

2. The suit was filed by the plaintiff for recovery of damages with interest thereon on account of the alleged unlawful termination of the contract by the defendant and also for recovery of Rs. 10,000/- deposited by the plaintiff for due fulfilment of the contract. The suit was decreed by the trial court allowing the plaintiff to recover from the defendant Rs. 69,995.62 by way of damages with interest at 6% per annum and also the sum of Rs. 10,000/- with interest thereon at 6 % from the date of the decree. The defendant filed A. S. 452 of 1962 in this Court against the decree and judgment of the trial court. During the pendency of the appeal the plaintiff executed the decree as a result of which the defendant deposited the decree amount on 20-8-1963 which was withdrawn by the plaintiff decree holder on 24-8-1963. A. S. 452 of 1962 was disposed of by this Court on 11-12-1966 dismissing the plaintiff's suit regarding the claim for damages but confirming the decree for the return of the security amount. This Court awarded interest at the rate of 3% per annum on the security amount payable by the defendant.

3. Because of the partial reversal of the decree of the trial court by the decision in A. S. 452 of 1962 the defendant filed E.A. 231 of 1966 before the execution court for recovery of Rs. 1,17,166.79 with interest thereon at the rate of 6% per annum. The court below had directed the plaintiff to pay Rs. 1,17,166.79 with interest at 6% per annum from the date of withdrawal, viz., 24-8-1963 till recovery of the amount. The appeal is directed against that order.

4. Learned counsel for the appellant raised the following grounds. (1) The lower court should not have awarded interest on the amount claimed by way of restitution. (2) The rate of interest awarded is high. (3) The liability to pay interest will if at all commence only from 11-12-1966 the date of the reversal of the decision of the trial court, and (4) The amount claimed by way of restitution includes the costs of the trial court realised by the plaintiff on which interest is not awardable We shall now examine these contentions.

Point No. 1. Counsel for the appellant contended relying on the decision in B. N. Railway v. Ruttanji Ramji AIR 1938 PC 67, and Union of India v Watkins and Co. AIR 1966 SC 275, that even interest under S.144, C.P.C. is awardable only when it is payable by contract, custom or any law. The decisions referred to deal with the right of a plaintiff to claim interest for the period anterior to the suit for recovery of a sum of money. They have absolutely nothing to do with a case arising under S.144, C.P.C. The power to award interest in a case arising under S.144, C.P.C. depends upon the terms of that provision. It reads:

"(1) Where and in so far as decree or an order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damage, compensation and mesne profits which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-s.(1)."

5. The consequences arising on account of the variation or reversal of a decree are therefore contained in S.144, C.P.C. The said provision imposes a duty on the Court to order restitution, when an order or decree is varied or reversed and in ordering restitution it is open to th