This appeal is preferred by the defendant petitioner in E.A. No, 84 of 1956 in O.S. No. 98 of 1949 on the file of the Court of Subordinate Judge, Tirunelveli. That was an application made by the defendant in the suit for restitution under section 144, Civil Procedure Code.

The facts of the case are: One Muthuswami Reddiar filed O.S. No. 98 of 1949 against the present appellant in the Court of the Subordinate Judge, Tirunelveli for recovery of a large sum of money and obtained a decree for about Rs. 10,000 odd and Rs. 1,400 for costs against the appellant. The appellant preferred an appeal against that decree to this Court in A.S. No. 121 of 1951. Pending appeal, he applied for stay of execution and this Court ordered the entire decree amount to be deposited into Court as a condition of the stay, and further ordered that the decree amount could be withdrawn by the decree-holder on his furnishing security of immoveable property. In pursuance of the order of this Court, the judgment-debtor, the appellant before me, deposited the entire decree amount into the lower Court he having paid the costs of suit to the decree-holder. But the decree-holder never furnished security as directed in the order of this Court and consequently never withdrew the amount which was lying in Court. Ultimately, the appeal, A.S. No. 121 of 1951, succeeded and the liability of the appellant was reduced to Rs. 562-12-0 for the plaint claim and Rs. 108-9-5 for costs, in the place of Rs. 10,000 odd and Rs. 1,400 odd granted by the lower Court. After this decision of the appeal, the judgment-debtor applied to the lower Court in E.A. No. 84 of 1956 for restitution, after giving credit to the sum of Rs. 108-9-5, which he was liable to pay as costs of the suit.

In these proceedings, he claimed a sum of Rs. 1,365-0-7 on account of the excess costs paid to the decree-holder as per the decree of the first Court. He also claimed Rs. 10,962-2-0 deposited in pursuance of the order of this Court in the stay application. He further claimed interest on both these amounts at 6 per cent. per annum. The learned Subordinate Judge directed restitution by passing an order calling upon the legal representative of the original plaintiff, who had died in the meanwhile, to pay back the amount of costs claimed, together with interest at 6 per cent. per annum. But, in respect of the plaint claim, the learned Judge refused to give interest claimed, on the ground that the decree-holder had not withdrawn the amount from Court and the money was always lying in Court till the appeal was disposed of.

Mr. Gopalakrishnan, learned counsel for the appellant, relies upon the Bench ruling in Shanmughasundara Mudaliar v. Ratnavelu Mudaliar1, where the same question arose for decision. That Bench ruled that restitution contemplated under section 144, Civil Procedure Code, was the restoration to the injured party of what he had lost and not the deprivation of the other party of what he had wrongfully gained. The reason behind this principle is that the object of restitution is to put back the wronged party into the position in which he would have been but for the wrong decree or order which was afterwards reversed and not to compel the party, who was benefited by the wrong decree, to return any benefit which he had gained by that decree. This decision is on all fours with the facts of the case before me and I am bound to follow it. Mr. Desikan attempted to distinguish this decision by saying that the inability of the decree-holder to withdraw the money in Court was due to a positive act on the part of the judgment-debtor in insisting upon security being given for the money before it could be withdrawn. That condition was imposed by the order of this Court, no doubt, at the request of the judgment-debtor when he preferred the application for stay of execution. This circumstance is not noticed in the decision mentioned above. But I am unable to see how it makes any difference. If the true te