Asiriwathan V. Mudalihamy Et Al.,

1932 Present: Drieberg and Akbar JJ.

ASIRIWATHAN v. MUDALIHAMY et al.

12-D. C. (lnty.) Ratnapura, 4,664.

Execution of decree-Money paid in satisfaction-Decree reversed in appeal- Restitution of benefits-Civil Procedure Code, s. 777.

Where a decree is reversed in appeal, the successful party is entitled to restitution of money paid in process of execution of the erroneous decree of the Court of first instance.

An application for the purpose may be made under section 777 of the Civil Procedure Code.

APPEAL from an order of the District Judge of Ratnapura.

Croos da Brera, for plaintiff, appellant.

July 20, 1932. DRIEBERG J.-

The appellant brought this action against the defendants to recover a sum of Rs. 4,827.93 which he said was due to him as his share of gems obtained from a certain land and for an accounting. On May 7, 1928,

an agreement not very clearly worded, was entered into between the appellant and the defendants, the second and third of whom are respondents to this appeal, that the action was to be withdrawn and that the first to the fourth defendants were to pay the appellant Rs. 12,603.60.

On the day of trial, June 11, 1928, the defendants were absent. The trial Judge proceeded ex parte, and, after examining the appellant, entered judgment for the appellant on June 11, 1928, in terms of the agreement for Rs. 12,603.60.

On July 19,1928, the appellant applied for execution which was allowed; at that time there was no appeal from the judgment. Before the returnable date for the writ the first respondent moved that the judgment be vacated and that execution be stayed pending the inquiry. This was allowed but later the Court refused to vacate the judgment and writ was re-issued on January 25, 1929. On January 28, 1929, the first respondent appealed against the order refusing to vacate judgment.

In the interval the appellant proceeded with execution. On March 11, 1929, the first respondent moved that writ should not re-issue without the appellant giving security as provided by section 763 of the Civil Procedure Code; on March 14, 1929, security was given in one surety for Rs. 500 and writ re-issued. Property was seized and a payment of Rs. 3,000 was made to the appellant which was certified on June 5, 1929. On July 17, 1929, the Supreme Court set aside the decree and sent the case back in order that the present appellant might move that judgment be entered in terms of the agreement. Apparently the Court thought the trial Judge had adopted a wrong procedure in entering judgment according to the agreement on the day the trial was fixed merely for ex parte hearing. Other steps were taken in the action since that date and the case has been fixed for trial. On September 12, 1931, the respondents moved that the appellant be ordered to bring into Court the sum of Rs. 3,000 paid to him by them on the ground that the decree under which it was paid had been thereafter set aside. The learned District Judge made order directing the appellant to bring into Court the sum of Rs. 3,000 but that the money could not be drawn until the trial was concluded. He held that he had power under section 839 of the Civil Procedure Code to make such an order. The appellant in the Court below took the objection that the application to the Court should have been by way of petition and affidavit under Chapter 24 of the Code and not by motion, but he also contended that the respondents should have claimed this amount in a separate action.

It was not necessary to resort to section 839 of the Civil Procedure Code, for there is provision made in the Code for such a situation as this in section 777 which provides that " when a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the app

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