Security in cases of restitution u/s 144.

This is a petition for revising and setting aside the order of the Subordinate Judge of Madurai dismissing E.A. No. 389 of 1957 in E.P. No. 403 of 1956 in O.S. No. 93 of 1950 on his file. That was a petition put in by these petitioners, under section 151, Civil Procedure Code alone, for directing the respondent, Ramalinga Naicker, to give sufficient immovable property, security before drawing out the amount of Rs. 2,000 deposited by them into Court as a first instalment by way of restitution of the amount of some Rs. 7989.54 in all due to the respondent by virtue of the first Court decree against him in O.S. No. 93 of 1950, Sub-Court, Madurai, having been set aside by this Court in appeal (A.S. No. 480 of 1952). The petitioner’s case was that they had filed L.P.A. No. 41 of 1956 in this Court against the judgment and decree in A.S. No. 480 of 1952, and that, though the stay application in that L.P.A. had been dismissed by a Bench of this Court, to which I too was a party, the respondent who was alleged to be a man of no means, should be made to give immovable property security for the Rs. 2,000 put into Court before he drew it out. It is represented to me by Mr. T.S. Vaidyanatha Ayyar that the balance of Rs. 5,989.54 has also been since deposited into the trial Court under an order ofRamaswami, J., dated 29th July, 1957, in a C.M.P. in this Civil Revision Petition as a condition precedent to stay of execution.

I have perused the records and heard the learned counsel for both sides. Mr. Vaidyanatha Ayyar strongly relies on the wording of Order 41, rule 6(1), Civil Procedure Code and says that the Court shall order security as a condition precedent to the withdrawal of even moneys in restitution as the word "restitution" is found in that rule. Mr. Ramachandra Ayyar, learned counsel for the respondent, pointed out that the petition itself was filed only under section 151, Civil Procedure Code, and not under Order 41, rule 6, Civil Procedure Code. I do not consider this an impediment in the way of Mr. Vaidyanatha Iyer’s relying on Order 41, rule 6, Civil Procedure Code, if it will help him. In modern times, the mere fact that a section of law rightly applicable to a matter is not quoted, and another section of law not so clearly applicable to the matter is quoted, will not bar the party from relying on the right section of law, if it is not totally irrelevant, or unconnected with the previous section. After all it is the Courts which lay down the law and are supposed to be the reservoirs of law and not parties who file petitions. But the difficulty facing Mr. Vaidyanatha Ayyar is that Order 41, rule 6, Civil Procedure Code, will also not help him in the circumstances of this case, which is a case of restitution under section 144, Civil Procedu e Code. Section 144, Civil Procedure Code, says that where and in so far as a decree is varied or reversed, the Court of the 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 such part thereof as has been varied or reversed, and that for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. It need hardly be pointed out that there is a tremendous difference between drawing out the money of another party put into Court for averting a sale in execution or a decree passed in one’s favour, and one’s own money put back into Court by the other party after the wrong decree in his favour has been reversed in appeal. The word "restitution" in Order 41, rule 6, Civil Procedure Code, relied on by Mr. Vaidyanatha Ayyar occurring in the clause "require security to be taken for the restitution of any property which may be