JUDGMENT N. Varadaraja Iyengar, J. 1. This appeal is by the plaintiff whose suit for relief against the Paliyam represented by the 1st defendant State of Travancore-Cochin by way of restitution under various heads of claim, has been dismissed by the court below in toto. 2. Though the appeal memorandum comprised the whole of the plaint claim, learned counsel Mr. V. Sankara Menon appearing for the appellant was content to press before us only that portion of it covered by Issue 8 in the case, and as against, such of the parties who had participated in the division of the Paliyam Estate, which took place pending suit, were alone made respondents. Issue 8 ran as follows : "8. Is the plaintiff entitled to claim back the amounts recovered by executing the decrees in O. S. No. 748 of 1107 and O. S. No. 940 of 1108 of the Irinjalakuda Munsiff's Court to any extent." 3. These two decrees had been passed in favour of the Paliyam Estate against the plaintiff's family on foot of two promissory notes executed by the plaintiff's brother Chakkoru. On Ext. J representation made by plaintiff on 3-11-1110 subsequent to the passing of these decrees, the Paliayam Valia Achan granted to the plaintiff a full discharge thereunder provided he paid one half of the principal amount due under the promissory notes that led to the decrees as well as the costs and the interest due under the decrees by 15-1-1111, vide order on Ext. J dated 23-12-1110. According to the plaintiff and indeed it is clear on the evidence also that he made further representation under Ext. C dated 12-2-1111 and the Valia Achan was pleased to forego even the one-half of the principals of the promissory note amounts - vide order on Ext. C dated 13-2-1111. This adjustment was not certified in court and taking advantage of that the Government in whom the management of the Paliyam Estate had subsequently vested took steps in execution to enforce the decrees in full. It appeared however that the only amounts which were recovered from the plaintiff within 3 years of this suit were Rs. 9-14-0 covered by Ext. R3 and Rs. 685-15-2 covered by Ext. R7. It is the recovery back of these amounts with interest from the Paliyam Estate that is alone pressed before us. 4. It appeared however that the only amounts which were recovered from the plaintiff within 3 years of this suit were Rs. 9-14-0 covered by Ext. R3 and Rs. 685-15-2 covered by Ext. R7. It is the recovery back of these amounts with interest from the Paliyam Estate that is alone pressed before us. 4. Now it is well settled that in cases of this type, the only remedy of the judgment - debtor is to sue the decree holder for the recovery of the money paid out of court. Such a suit will not be barred by S.47 C. P. C. The cause of action is variously described as failure of consideration or breach of an express or implied promise or of a statutory duty to certify the payment. Some few courts have held that the cause of action for such suit arises as soon as the application for execution is presented that is, when the decree holder fails to fulfil his duty and applies for execution. But the better opinion would appear to be that the cause of action arises only when damage is actually sustained, that is, when the money is recovered a second time. See the cases collected in Chitaley's Civil Procedure Code, 6th Edn. Vol. III, page 2810. There can be no doubt therefore that the plaintiff is entitled to recover back the amounts covered by Ext. R3 and R7 amounting on the whole to Rs. 678-13-2. 5. The court below thought that the plaintiff's failure to fulfil the condition as to payment of portion at least as per Ext. J order disentitled him to the concession altogether. But in doing so it failed to note that Ext. C order modified that condition and limited it to payment of costs only and that such costs must be deemed to have been recovered in the first instance apart from Ext. R3 and R7 receipts. The learned Additional District Judge seems also to have been oppressed by the consideration that the agreement by the Valia Achan to give up amounted only to a gratituous promise and that, according to the Judge, cannot be the basis of any relief to the plaintiff. But this is to apply the common law of England ignoring the wide departure therefrom introduced by S.63 of the Contract Act as follows: "63. But this is to apply the common law of England ignoring the wide departure therefrom introduced by S.63 of the Contract Act as follows: "63. Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extent the time for such performance, or may accept instead of it any satisfaction which he thinks fit." Under this section it has been held so early as 1888 in Manohar Koyal v. Thakur Das Naskar, (15 Cal. 319), that a promisee can discharge the promise without consideration. And this he can do without a new agreement. For, as observed by the Privy Council in Chunna Mul-Rama Nath v . Mool Chand-Ram Bhagat ( AIR 1928 PC 99 ); "The language of the section does not refer to any such agreement and ought not to be enlarged by any implication of English doctrines." 6. In the result, we allow the appeal and modify the decree of the court below to this extent only that the plaintiff is allowed to recover as against the Paliyam Estate, the sum of Rs. 678-82 nP. with interest thereon at six percent from this day. The appeal is otherwise dismissed. The plaintiff and the Paliyam Estate will pay and receive proportionate costs both in this court and in the court below.