Judgement Consolidated Appeal (No. 52 of 1940) from a judgment and two decrees of the High Court (April 11, 1939) which reversed two orders of the Subordinate Judge at Monghyr (April 2, Law. Rep. 69 Ind. App. 10 ( 1941- 1942) Kedar Nath Goenka v. Maharaj Kumar Babu 76 1938, and November 12, 1938). The following facts are taken substantially from the judgment of the Judicial Committee. In 1901, a certain property in Bihar was sold by the Collector for arrears of land revenue. It belonged to the respondents or their predecessors. There having been an irregularity in the sale, the present appellant, whose father had been the purchaser, by a decree which was given in a suit against him for possession was compelled to surrender the property. In that suit possession was decreed and mesne profits were assessed by the Subordinate Judge. He assessed the mesne profits at a particular rate, and he gave interest at twelve per cent, throughout. There was an appeal from that decision, and the High Court increased the amount of the mesne profits, but they decreed that interest should be at twelve per cent, up to the date at which possession of the property was given to the present respondents, and that after that the interest should be six per cent. On a further appeal from that decision the Privy Council varied the decree only by saying that interest should be at six per cent, throughout. Subject to that, their Lordships affirmed the decision of the High Court (Babu Kedar Nath Goenka v. Baku Bageswari Prasad Singh (( 1937) L.R. 641. A. 240.)). The result of those proceedings was that the figure arrived at on the footing of interest as given by the High Court was a sum of Rs.89,000, whereas the figure which was the right figure, as approved by the Privy Council, was some Rs.75,000. In the meantime, while the decree of the Subordinate Judge stood, and while the interest stood at the rate of twelve per cent., the present appellant had brought into court the sum of Rs.61,000 as being enough to meet the position. Soon after payment in, that sum was taken out by the present respondents. In the meantime, while the decree of the Subordinate Judge stood, and while the interest stood at the rate of twelve per cent., the present appellant had brought into court the sum of Rs.61,000 as being enough to meet the position. Soon after payment in, that sum was taken out by the present respondents. The amount due to the respondents proved, according to the order of the High Court as approved by the Privy Council, to be a sum which was in excess of Rs.61,000 namely, Rs.75,000, and the result was that when the appellant had paid in Rs.61,000 he had paid in less than the sum which was eventually found to be due to the present respondents. Other matters arose, and thereupon execution was eventually sought of the decree against the present appellant, but the appellant moved first with an application for restitution. By his petition, instituted on January 3, 1938, under s. 144 of the Code of Civil Procedure (V. of 1908), he submitted that in so far as the decree of the court of first instance was varied by their Lordships of the Judicial Committee he was entitled to benefit by way of restitution, and he prayed for a refund, with interest, of the decretal amount deposited in the court of first instance. In their petition filed in opposition the respondents contended that the decree of the court of first instance having been varied by the Privy Council only on the question of interest, and the amount of mesne profits with interest thereon until the date of the decree of the court of first instance being in excess of the sum paid in the appellant was not entitled to any benefit by way of restitution ; that they were entitled to a set-off of the deposit; and that they (the respondents) had taken execution proceedings for the balance remaining due thereafter. The Subordinate Judge made an order in favour of the appellant, but on appeal his decision was reversed by the High Court (Chatterji and Fazl Ali JJ.). The terms of s. 144 of the Code of Civil Procedure appear from the judgment of the Judicial Committee. 1941. Nov. 17, 18. C. 5. Rewcastle K,C, and S. P, Khambatta for the appellant. J. M. Parikh for the respondents. Law. Rep. 69 Ind. App. 10 ( 1941- 1942) Kedar Nath Goenka v. Maharaj Kumar Babu 77 Nov. 18. The terms of s. 144 of the Code of Civil Procedure appear from the judgment of the Judicial Committee. 1941. Nov. 17, 18. C. 5. Rewcastle K,C, and S. P, Khambatta for the appellant. J. M. Parikh for the respondents. Law. Rep. 69 Ind. App. 10 ( 1941- 1942) Kedar Nath Goenka v. Maharaj Kumar Babu 77 Nov. 18. The judgment of their Lordships was delivered by Lord Atkin, who stated the facts, and continued Their Lordships do not find it necessary to hear counsel for the respondents in this case. The first of these appeals arises on the appellants petition for restitution, namely, payment back to him of the Rs.61,000 which he had paid into court and which the respondents had taken out. That depends on the provisions of s. 144 of the Civil Procedure Code, which provides "Where and in so far as a decree 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 such part thereof as "has been varied or reversed; . . . ." It appears to their Lordships impossible to suggest that the appellant, who, after all, only paid in a sum which was less than the sum which proved to be due to the respondents, could claim that he could have restitution of that money, he at the same time making in that petition, be it observed, no suggestion that he would pay the actual amount of the decree in respect of which he paid in the money. That, however, is not so material. There was a larger sum due from him than the sum which he paid in, and therefore in the opinion of their Lordships, following the opinion of the High Court, the section has no application at all. That, however, is not so material. There was a larger sum due from him than the sum which he paid in, and therefore in the opinion of their Lordships, following the opinion of the High Court, the section has no application at all. Indeed, the Subordinate Judge would appear to have been of that opinion, but he misled himself somehow or other into the mistaken belief that the respondents before the High Court, when the matter of the amount of the decree was adjusted by that court, had withheld from the High Court the fact that this amount of money had been paid into court and had been taken out. It is, first of all, only necessary to say that there was no such suppression of the fact, which was brought home to the High Court, who knew all about it, and, secondly, that had it been suppressed, it was quite irrelevant to the matter that the High Court had to deal with, which was what was the proper decree to make after the judgment given by the Privy Council, and what was the form of the decree which ought to have been made by the Subordinate Judge at the time that he made it. No question arises at all, in the opinion of their Lordships, in reference to this question of restitution. The appellant had no right to restitution, and his petition praying for it was properly dismissed. The other appeal depended on the question of the figures in the execution decree. That, again, has been quite rightly adjusted. The real complaint made by the appellant on the restitution appeal is that, unless some credit is given somewhere for these Rs.6i,ooo, injustice would be done. That is perfectly true ; injustice would have been done on the execution decree if that amount had not been taken into account. It has been taken into account, and quite correct figures have been arrived at. Therefore, the appeal in respect of that matter must be dismissed. There appears to their Lordships to be no ground whatever for suggesting that anything wrong is to be found in either of the orders made by the High Court in respect of the matters under appeal, and in these circumstances their Lordships will humbly advise His Majesty that these appeals be dismissed, and that the appellant pay the costs.