Respondent’s locus standi as trustee negative in second appeal.

ORDER :- This civil revision petition is filed against the order of the Additional Subordinate Judge, Madurai, in C.M.A. 477 of 1978 in which the claim for restitution by the civil revision petitioner against the respondent was negatived. The facts are briefly as follows :-

2. One Chellayee Ammal as Trustee and lessee of properties of Madhayanai Koil Trust, filed a suit for recovery of arrears of rent against S. Alagiriswami Naidu, the civil revision petitioner herein. The tenant, the civil revision petitioner herein, contested the claim on the ground that the said Chellayee Ammal, the respondent herein is not the Trustee and that the superstructures in the premises also do not belong to the Trust. The matter eventually came up before this court in S.A. No. 422 of 1969 and when the second appeal was pending, the civil revision petitioner filed an application for stay of execution of the decree of the lower Court granted in favour of the respondent herein and as a condition precedent for stay, this court directed payment of Rs. 944.80 on or before 28-2-1970 and continue to pay a sum of Rs. 16 every month. In all, a sum of Rs. 2524.80 seems to have been paid by the civil revision petitioner herein during the pendency of the second appeal. Ultimately, the respondent herein lost the second appeal mainly on the ground that she has no locus standi to file a suit as a trustee. Consequent to the result of the second appeal the civil revision petitioner herein filed E.A. 350 of 1977 in O.S. 196 of 1964 under S.144, C.P.C. directing the plaintiff, the respondent herein, to pay back the amount received by her in pursuance of the interim order of this court. To the abovesaid restitution application, the respondent herein filed a counter statement stating that the pre-existing liability of the civil revision petitioner to pay the rent of the Trust has not been extinguished by the dismissal of the wrongly framed suit. She also contended that since the civil revision petitioner is a tenant and he had paid the rent during the eviction proceedings, he is not entitled to get back the rent on the dismissal of the suit. The civil revision petitioner was depositing only what was legally due from him and he has not suffered any loss or injury and the petitioner is not entitled by way of restitution, the amount paid by him towards rent. The trial court after considering the contentions of both sides came to the conclusion that the respondent is not entitled to realise the amount of Rs. 2542.80 deposited by the civil revision petitioner and as she had the amount of Rs. 2542.80 which she was not legally entitled to, she is bound to pay back the said amount with interest at 6 per cent per annum and allowed the application. As against the said order, the respondent herein filed an appeal C.M.A. 477 of 1978 on the file of the Additional Subordinate Judge, Madurai. The learned Additional Subordinate Judge, Madurai, taking the view that inasmuch as the civil revision petitioner admitted that he is the tenant to the vacant site and as such he is liable to pay the rent for it he cannot seek to recover the amount deposited by him as such rent allowed the appeal and held that the civil revision petitioner is not entitled to an order of restitution in respect of the said amount. As against the said order of the Additional Subordinate Judge, this civil revision petition is filed.

3. According to S.144. C.P.C. if a decree or order is varied or reversed in appeal and if in the meanwhile, the person in whose favour the decree is passed, collects any amount, then the party who has paid the amount is entitled to collect the same by way of restitution under a properly constituted application under S.144, C.P.C. and as per Section 144(2), C.P.C., no suit is maintainable for recovery of such amount. In this case, we have to see whether the civil revision petitioner who deposited the arrears of rent in pursuance of the order of this Court, is entitled to get back