Bhagwat Prasad v. Raghunath Prasad — 1961 DIGILAW 328 (ALL)

JUDGMENT D.S. Mathur, J. - This is a revision under Section 115, C.P.C. by Bhagwat Prasad and others against the order of the Judge Small Cause Court, Meerut, exercising appellate jurisdiction allowing the appeal of Raghunath Prasad and others, opposite-parties, and thereby dismissing the application under Section 144, C.P.C. of the applicants. 2. The facts of the case, in brief, are that Bhagwat Prasad on behalf of all the applicants, made an application under Section 12 of the U.P. Agriculturalists Relief Act for redemption of the mortgage executed by their father in favour of the father of the opposite parties Nos. 1 to 3 and husband of No. 4. The learned Judge has observed as if according to the applicants a sum of Rs. 1, 209 and odd was due under the mortgage, but a perusal of the record makes it clear that according to the mortgagors the debt was fully paid up and no further amount was due. The application under Section 12 was allowed subject to a deposit of Rs. 1, 209-15-6 within two months. Thee applicants deposited the amount within this period. The opposite-parties predecessor-in-interest felt dissatisfied and preferred an appeal against the above order claiming that a higher amount was payable under the mortgage. The appellate court remitted an issue to the trial court for submission of finding. It was at this stage that the U.P. Zamindari Abolition and Land Reforms Act and also the U.P. Zamindar Debt Reduction Act came into force with effect from 1-7-1952. The applicants-mortgagors thereupon indicated their desire to withdraw the suit and the trial court sent back the papers to the appellate court where the applicants withdrew the suit. The result was that the appeal was allowed, the decree of the trial court was set aside and the redemption suit was dismissed. It has not come on the record whether the suit was withdrawn with or without the permission of the Court, but for the disposal of the matter in issue this point is of no importance. 3. Thereafter the opposite-parties instituted a suit for the recovery of the mortgage-money still due and in the suit they gave credit of the sum of Rs. 1,209-15-6 which they had withdrawn from the Court. After reduction of such amount as was necessary under the U.P. Zamindar Debt Reduction Act, that suit was decreed. 3. Thereafter the opposite-parties instituted a suit for the recovery of the mortgage-money still due and in the suit they gave credit of the sum of Rs. 1,209-15-6 which they had withdrawn from the Court. After reduction of such amount as was necessary under the U.P. Zamindar Debt Reduction Act, that suit was decreed. A perusal of the record of this case makes it clear that in the written statement the present applicants had challenged the credit of Rs. 1,209-15.6 saying that this amount was to be refunded by the opposite parties. In spite of this plea the opposite-parties adhered to their original case and obtained a decree for a smaller amount. 4. The applicants-mortgagors also moved the trial court for restitution under Section 144, C.P.C. The application was allowed under order dated 15-1-1955 and the heirs of Shri Ram, namely the opposite-parties, were directed to pay back the above amount within one month failing which it was to be realised from them as decretal amount out of the assets of Sri Ram deceased in their hands. The opposite parties preferred an appeal which was allowed by the Judge Small Cause Court under the order in revision. 5. The learned Judge was of the opinion that the appellate court which allowed the withdrawal of the suit under Section 12 of the U.P. Agriculturists' Relief Act had no jurisdiction to permit a suit to be withdrawn when that party had not challenged the decree as passed by the trial court. The result was that on that ground the application under Section 144 was dismissed. 6. Two points for consideration are: firstly, whether the plaintiff can withdraw his suit at the stage of the first appeal, when he did not challenge the decree and the decree was challenged by the other party; and secondly, whether in the circumstances of the present case the application under Section 144, C.P.C. was maintainable. 7. Or. 23, R. 1, C.P.C. governs the withdrawal of a suit. Sub-R. (1) thereof lays down that at any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. 7. Or. 23, R. 1, C.P.C. governs the withdrawal of a suit. Sub-R. (1) thereof lays down that at any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. The words "at any time" are of great significance and will cover the stage of a First Appeal and may even cover the stage of a revision though no opinion is being expressed on this point. In other words, therefore, when the decree of the trial court has not become final on account of an appeal being preferred by one party or the other, the plaintiff can withdraw his suit. The withdrawal can be with or without the permission of the Court. If the suit is withdrawn with the permission of the Court, the plaintiff can institute another suit within the period of limitation. But if he withdraws the suit without the permission of the Court, he cannot seek remedy afresh. If in the instant case the appellate court had not granted the permission for the withdrawal of the suit, the plaintiff, namely, the present applicants, shall be debarred from instituting a fresh suit, a suit on the same cause of action. In other words, after the withdrawal of the suit the applicants could not take steps for redemption of the mortgage; but the legal disability on the part of the applicants to sue for redemption could not adversely affect the rights of the other party, namely the mortgages, to sue for recovery of the mortgage money. The second suit was filed by the mortgagees and not by the present applicants. Consequently, there was no disregard of Or. 23, R. 1, C.P.C. A similar view was expressed in Khativzaman Khan v. Mohd. Zafar Ali Khan, AIR 1949 Allahabad 255. 8. The lower court thus acted erroneously when it recorded the finding that the appellate court had no power to permit withdrawal of the suit under Section 12 of the U.P. Agriculturists' Relief Act and on the basis of the withdrawal to set aside the decree of the trial court which had not been challenged by the applicants-mortgagors. 8. The lower court thus acted erroneously when it recorded the finding that the appellate court had no power to permit withdrawal of the suit under Section 12 of the U.P. Agriculturists' Relief Act and on the basis of the withdrawal to set aside the decree of the trial court which had not been challenged by the applicants-mortgagors. Sec. 144 provides that - "Where and insofar as a decree or an order is varied or reversed in appeal, revision or otherwise, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or other wise, 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 order or such part thereof as has been varied or reversed; and, for this purpose the court may make any orders, including order 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." The scope of Section 144 was considered by the Supreme Court in Lal Bhagwant Singh v. Sri Kishen Das, A.I.R. 1953 SC 136 : 1953 ALJ 249 and the learned Advocate for the opposite-parties placed reliance upon certain observations made therein. Their lordships observed at page 139 column 2 as below : "An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that the restitution would be clearly contrary to the real justice of the case." 9. It has been contended by the learned Advocate that the judgment of the trial court allowing the application under Section 12 of the U.P. Agriculturists' Relief Act was not erroneous and further, restitution would be contrary to the real justice of the case as thereby the opposite-party shall be put to a loss while the applicants shall gain unduly as a result of the enforcement of the U.P. Zamindar Debt Reduction Act. In my opinion, none of these contentions have any force. Erroneous judgment does not mean a judgment which is against the law or facts of the case. The word "erroneous" has a reference to the words used in Section 144, namely, where the decree has been varied or reversed. Technically speaking, a decree is not modified or reversed unless it is to some extent erroneous. The same view can be expressed in a case where the plaintiff withdraws the suit at a later stage to claim benefit of some enactment. Even though the decree under Section 12 of the U.P. Agriculturists' Relief Act had not been challenged by the mortgagors, such a decree could not be passed after they withdrew the suit. The effect of withdrawal was that the suit or the proceeding under Section 12 was to stand dismissed with costs, if necessary, and the decree to be passed would be different to what had earlier been passed by the trial court. For all practical purposes, therefore, the decree passed by the trial court was erroneous simply because the suit had been withdrawn and could not be decreed in any form. Further, as a result of the withdrawal of the suit the decree of the trial court was to be reversed. When the decree of the trial court was reversed, restitution under Section 144 could be ordered provided that restitution was necessary to undo the wrong caused to the applicants. Restitution could, of course, be disallowed if it was clearly contrary to the real justice of the case. 10. At this place a reference may be made to the case of Vindhyachal Tewari v. Board of Revenue, AIR 1956 Allahabad 663 : 1956 ALJ 325 in which a liberal interpretation was given to Section 144 and it was deemed to cover a case where as a result of abatement the decree or order had to be reversed. 11. 10. At this place a reference may be made to the case of Vindhyachal Tewari v. Board of Revenue, AIR 1956 Allahabad 663 : 1956 ALJ 325 in which a liberal interpretation was given to Section 144 and it was deemed to cover a case where as a result of abatement the decree or order had to be reversed. 11. From the facts detailed above it will be found that the applicants had not volunteered to deposit the sum of Rs. 1,209-15-6. They had to deposit this amount under orders of the Court even though their plea was that no amount was due under the mortgage. Any voluntary payment made with or without any condition could be appropriated towards the mortgage subject to the express wish of the debtor; but where the debtor did not voluntarily make the payment, such amount could not be utilised by the creditor unless the decree under which the amount was deposited became final and was binding on the parties. As, in the present case, the amount was not deposited by the applicants voluntarily, it could not be treated as payment towards the loan. It was an amount deposited in Court in compliance with the decree to be appropriated by the decree-holder, if the decree was maintained. In other words, the reduced amount of the mortgage on the enforcement of the U.P. Zamindar Debt Reduction Act was to be calculated without taking into consideration the aforementioned sum of Rs. 1,209 and odd. 12. It was conceded by the learned Advocate for the opposite-parties that if the aforesaid amount was not credited to the mortgage debt, the total amount payable to the opposite-parties would have been less by about Rs. 400. It was as a result of the enforcement of the U.P. Zamindar Debt Reduction Act that the applicants became liable to pay a reduced amount in full satisfaction of the mortgage. No one can be permitted to flout the provisions of an Act, and consequently a benefit which had accrued to the applicants could not be nullified, may be in part, by the opposite-parties by giving credit of an amount which, strictly speaking, could not be treated as payment towards the mortgage-money. If the matter is looked into, keeping this aspect in mind, it cannot be said that the restitution would cause any wrong contrary to the real justice of the case. 13. If the matter is looked into, keeping this aspect in mind, it cannot be said that the restitution would cause any wrong contrary to the real justice of the case. 13. Lastly it was contended by the learned Advocate for the opposite-parties that the setting aside of the decree of the trial court as a result of the withdrawal of the suit does not amount to reversal of the decree as after the withdrawal of the suit, there is no decree. This contention can easily be repelled. When a suit is withdrawn, some final order has to be passed therein and such order will always be in the form of a decree. Consequently, even if the withdrawal of the suit not allowed by the appellate court there came into existence a decree by which the application under Section 12 was to stand dismissed. There was. for all practical purposes, the reversal of the decree which had originally been passed by the trial court i.e. in place of the decree decreeing the suit for redemption on payment of certain amount. There came into existence a decree dismissing that suit. 14. The lower appellate court not only committed an illegality but failed to exercise the jurisdiction which was vested in it. It had the jurisdiction to pass orders on the application under Section 144, C.P.C. but it was of a wrong view that Section 144 was inapplicable. This Court, can, therefore, exercise the revisional jurisdiction under Section 115, C.P.C. 15. The revision is hereby allowed, the decree and judgment of the lower appellate court are set aside and the decree of the Munsif Havali is restored. Costs of all the courts on the parties.