ORDER P. Unnikrishna Kurup, J. 1. The petitioners in these civil revision petitions were the plaintiffs in Small Cause Suit Nos. 6 of 1968 and 36 of 1964 on the file of the Subordinate Judge's Court of Kottayam. Both those suits were disposed of by a common judgment as the issues involved in the suits were identical. 2. The plaintiffs in the two suits are brothers. The 1st defendant (in both suits) agreed to sell 10 bags of rice to the plaintiff in one suit and 5 bags of rice to the plaintiff in the other suit, each set of five bags of rice being valued at Rs. 26.08. The price was paid and the 1st defendant issued three bills which are marked as Exts. P-1, P-2 and P-3 in the cases. The 1st defendant thereafter failed to supply the rice and when the plaintiffs demanded the amounts, the 1st defendant replied that the money had been paid to the 2nd defendant and that the 1st defendant was not liable. The two suits were filed for recovery of amounts due to the respective parties and they were jointly tried on the application of the defendants. In both the suits the 1st defendant pleaded that the claim was not enforceable in law as the transaction evidenced an illegal contract and also that he has paid back the amounts to the respective plaintiffs in the two suits. 3. The trial court held against the 1st defendant on the plea of discharge and on the plea that he was only a commission agent and money had been paid to the 2nd defendant. The trial court, however, dismissed the two suits on the ground that the transaction contravened the provisions of the Kerala Foodgrains Dealers Licensing Order 1964 and as such the plaintiffs were not entitled to enforce the claim based on such a transaction. 4. The first contention raised by the revision petitioner is that the quantity of rice sold under Exts. P-1 and P-2 is very much less than 10 quintals and under the Kerala Foodgrains Dealers Licensing Order, 1964, which will hereinafter be referred to as the Licensing Order, there was no prohibition or restriction with regard to private sales of rice if the quantity was less than 10 quintals. P-1 and P-2 is very much less than 10 quintals and under the Kerala Foodgrains Dealers Licensing Order, 1964, which will hereinafter be referred to as the Licensing Order, there was no prohibition or restriction with regard to private sales of rice if the quantity was less than 10 quintals. It was also urged that the joint trial of the two separate suits filed by the two different plaintiffs was no reason for the court to treat subject-matter of the two suits as one single claim arising under a single transaction. The trial court held that though separate bills had been issued, the transaction related to the sale of 15 bags of rice and it was as such in contravention of the provisions of the Licensing Order. In the said Order, it is provided that no person shall carry on business as a dealer except under a licence issued by the authority and a dealer has been defined "as a person engaged in the business of purchase, sale or storage for sale of any one of the foodgrains in quantity of ten quintals or more at any one time.....". Although some attempt was made by the 1st defendant to prove that the two transactions were negotiated by the same person, namely, one Devassia, the 1st defendant was not able to substantiate this contention. Devassia was examined on the side of the plaintiffs and he swore that he did not know the 1st defendant at all and that the transactions were not entered into by him on behalf of the plaintiffs in either of the two suits. There is, therefore, really no evidence to show that the transactions were effected by the same person. On the contrary, the evidence only establishes that the transactions were separate, and each being in respect of a quantity below 10 quintals there was no illegality attached to the private sale or purchase of rice. The 1st defendant has put forward two cases mutually inconsistent with each other. He would say that he has not effected any sale of rice and that he was but only a commission agent. He would also say that the alleged transaction is illegal as it was for the sale of rice above the quantity of 10 quintals. The 1st defendant has put forward two cases mutually inconsistent with each other. He would say that he has not effected any sale of rice and that he was but only a commission agent. He would also say that the alleged transaction is illegal as it was for the sale of rice above the quantity of 10 quintals. If the first contention were to be accepted, it would mean that there was no sale of rice by him and there was therefore no contravention of the Licensing Order. The lower Court has however found that the 1st defendant has really effected the sale of rice. The question is whether the contract entered into by the plaintiffs in the two suits is illegal, that is to say, whether it contravened the provisions of the Licensing Order. So far as the plaintiffs in the two suits are concerned, their purchases as such cannot be considered as illegal or invalid as they had effected private purchases only of quantities of rice below the prohibited quantity. There is no provision under the Licensing Order which prohibits a person from purchasing rice below 10 quintals from any private seller. It has not been proved that the plaintiffs in each of the two suits were aware that the 1st defendant was storing or carrying on trade in rice above the prohibited quantity. This is a case where, if at all, the 1st defendant alone knew that he was carrying on trade in rice in contravention of the Licensing Order. The plaintiffs, who paid the amounts, cannot be considered in pari delicto in such circumstances. 5. Assuming for purposes of argument that the transaction is illegal, the further question, that arises for consideration is whether the plaintiff would be entitled in such circumstances to restitution of the amounts paid by him under section 65 of the Indian Contract Act. The plaintiff has cited the decision in R. Pallamsetti v. D. Sriramulu, A.I.R. 1968 Andhra Pradesh 375, to show that where the terms of an illegal contract had not been carried out and the contract was repudiated, the amount paid under the contract was recoverable as the parties revert back to their original or previous positions. That was a case where the marriage of two minors was settled and in pursuance of the under standing arrived at, the plaintiff gave certain presents and moneys worth about Rs. That was a case where the marriage of two minors was settled and in pursuance of the under standing arrived at, the plaintiff gave certain presents and moneys worth about Rs. 3,000 to the defendant. Subsequently, the marriage could not come off for a variety of reasons and the plaintiff sought recovery of the presents and moneys. It was held that the mere intention to celebrate such a marriage, which is celebrated, would have been ab initio void, was not sufficient to disentitle the plaintiff from recovering what he gave as presents to the prospective bride. It was also observed that it was only in cases where there was part performance of the illegal contract that the Court would not render assistance in the recovery of moneys advanced for any illegal purpose. This decision relied on the ruling of the Privy Council in Petherpermal Chetty v. Muniandi Servai, 1908 I.L.R. 35 Calcutta 551 (PC). The following passage from that decision is relevant and is extracted: "The answer to that is that the plaintiff, in suing to recover possession of his property, is not carrying out the illegal transaction, but is seeking to put every one, as far as possible in the same position as they were in before that transaction was determined upon. It is the defendant, who is relying upon the fraud, and is seeking to make a title to the lands through and by means of it. And despite his anxiety to effect great moral ends, he cannot be permitted to do this. And, further, the purpose of the fraud having not only not been effected, but absolutely defeated, there is nothing to prevent the plaintiff from repudiating the entire transaction, revoking all authority of his confederate to carry out the fraudulent scheme, and recovering possession of his property." The plaintiff has also cited other decisions from which the principle that can be gathered is that if a fraud or illegal purpose is not carried out, the money can be recovered from the person to whom it was advanced provided that there has not been a part performance or substantial performance of the illegal contract. It seems unnecessary to cite all the decisions but a reference to two of the decisions would make the matter clear. It seems unnecessary to cite all the decisions but a reference to two of the decisions would make the matter clear. In Dharmeswar v. Union of India, A.I.R. 1955 Assam 86, it was specifically held that where the agreement is unenforceable, relief is permissible under section 65 of the Contact Act and restitution of the amount received by any person under the agreement has to be granted under section 65 of the Contract Act. In Venkataramayya v. Pullayya, A.I.R. 1936 Madras 717, it was held that where the purpose of fraud is not only not effected, but in fact is defeated, there is nothing to prevent a person from repudiating the whole transaction, revoking all authority of the confederates to carry out the fraudulent scheme and recovering all property fraudulently transferred. These decisions uniformly hold that so long as the fraud or illegal purpose has not been carried out, the money paid by one of the parties can be recovered and section 65 of the Contract Act would apply. 6. On behalf of the respondents the observations in Anson's English Law of Contract, 22nd Edition, page 343 were relied. It is sought to be argued that the first exception to the rule that illegal contracts will not be enforced by courts relates to cases where money has been paid, or goods delivered, for an unlawful purpose which has not been carried out because the plaintiff repented in time. The contention is that the plaintiff should have withdrawn from the contract and repented for having entered into the illegal contract before he will be permitted to recover the amount. The learned Author himself has pointed in the passage occurring at pages 343, 344 and 345 that: "The law is not quite satisfactorily settled on this point but its present condition would seem to demand that two conditions be satisfied. First, the party seeking to recover must repent of the transaction before the illegal purpose is substantially executed. Secondly, the repentance must be genuine and not be merely frustration by circumstances over which he has no control." These conditions are not wholly found embodied in the Indian decisions on the point. 7. First, the party seeking to recover must repent of the transaction before the illegal purpose is substantially executed. Secondly, the repentance must be genuine and not be merely frustration by circumstances over which he has no control." These conditions are not wholly found embodied in the Indian decisions on the point. 7. In Jahed Shaikh v. K. C. Das, 62 Calcutta Weekly Notes 377, an agreement for acquisition of corrugated iron sheets without general or special written order from the Controller and which was forbidden by the Iron and Steel (Control of Production and Distribution) Order, 1941 came up for consideration. The court accepted the exception that if the illegal purpose has not been carried out, the law allows a locus paenitentiae to the party who demands the return of money paid before the illegal purpose is carried out. The decision lays down that either party to an illegal agreement may rescind it while it remains executory and recover from the other party any money which he might have paid to him thereunder, provided that the illegal purpose has not been wholly or substantially effected. In this case, before the illegal contract, namely, the supply of rice was effected, the contract has been repudiated and what is sought by the plaintiff is the recovery of the money which he has paid. In other words, he seeks restitution of the money which he has paid and the restitution is sought before the illegal supply of rice has been in part or in substance carried out. It is therefore clear that the plaintiffs are entitled to recover the amounts sued for. 8. It may be mentioned that the 1st defendant had put forward a case that the money had already been returned to the plaintiff. But this was factually found to be untrue by the lower court and no exception has been taken to this finding of fact. The result is that both the suits have to succeed as against the 1st defendant. 9. The 2nd defendant has not been found liable for the amount received by the 1st defendant and the plaintiffs cannot therefore have any relief so far as the 2nd defendant is concerned. In the result, the judgments and decrees of the lower court in both the suits are set aside and the suits are decreed as prayed for against the 1st defendant. In the result, the judgments and decrees of the lower court in both the suits are set aside and the suits are decreed as prayed for against the 1st defendant. The suits against the 2nd defendant are dismissed but without costs. The plaintiffs will be entitled to their costs in the trial court and in this court from the 1st defendant.