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1974 DIGILAW 170 (KER)

NARAYANA KEKKUNAYYA v. VISHNU DERINJATHAYA

1974-08-20

CHANDRASEKHARA MENON, K.K.NARENDRAN

body1974
Judgment :- 1. The question that arises for consideration in this case is whether the liability under S, 144 of the Code of Civil Procedure, 1908 for restitution of amounts drawn from court deposit is a debt under the Kerala Agriculturists' Debt Relief Act, 1970. In this appeal against the order of the Subordinate Judge of Kasargod in Interlocutory Application No. 75 of 1970 in O. S. No. 77 of 1957 the respondent in the court below is the appellant and the petitioner therein the respondent. 2. The facts are simple. The appellant was the plaintiff in O. S. No. 77 of 1957 which was decreed on 5-1-1963. From the above judgment and decree the respondent-defendant filed A. S. No. 164 of 1963 before this Court and this Court granted stay of execution of decree on the respondent depositing Rs. 6,100/-in the court below. The appellant on 5-6-1964 withdrew a sum of Rs. 6000/- from the above deposit, the respondent made in the court below. On 15 111968 this Court allowed A. S. No. 164 of 1963 with costs. Thereupon the respondent in this appeal filed R.I.A. No. 75 of 1970 on 22 21970 under S.144 of the Code of Civil Procedure in the court below for restitution of the amount withdrawn with 6 per cent interest. The appellant filed a counter affidavit and an additional counter-affidavit in the court below and in the additional counter-affidavit filed on 20-7-1970 he raised a contention that he is an agriculturist as defined in S.2(1) of the Kerala Agriculturists' Debt Relief Act 11 of 1970 and the claim made in the petition is a debt under the above Act. 3. The court below gave a decision that the respondent was entitled to get back the amount the appellant withdrew from court on 5 61964.On the question of the applicability of the Kerala Agriculturists Debt Relief Act, 1970 the court below came to the conclusion that the liability in question cannot be considered as a debt as defined in Act 11 of 1970. It is against the above order of the court below that the appellant has come up in appeal. 4. Before us the main contention urged by the learned counsel for the appellant is that the provisions of Kerala Act 11 of 1970 are attracted and the liability in question is a debt as defined in S.2 (4) of the Act. It is against the above order of the court below that the appellant has come up in appeal. 4. Before us the main contention urged by the learned counsel for the appellant is that the provisions of Kerala Act 11 of 1970 are attracted and the liability in question is a debt as defined in S.2 (4) of the Act. It is not disputed that the appellant is an agriculturist entitled to the benefits of Kerala Act 11 of 1970. S.144 of the Code of Civil Procedure which provides for restitution is as follows: "144. (1) Where and in so far as a decree or order 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; and, for this purpose, the Court f may make any orders, including orders 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. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1)" S. 2 (4) of Kerala Act 11 of 1970, omitting the exceptions (a) to (n) and the Explanations, is as follows: "2. (4) 'debt' means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract, or under a decree or order of any court; or otherwise, but does not include " The appellant relies on the decision in First National Bank Ltd. v. Sant Lal (AIR. 1959 Punjab 328) and contends that a liability under S.144 of the Civil Procedure Code also will be a debt under S.2 (4) of Kerala Act 11 of 1970.. 1959 Punjab 328) and contends that a liability under S.144 of the Civil Procedure Code also will be a debt under S.2 (4) of Kerala Act 11 of 1970.. In the above decision Tek Chand J. says: "The term'liability' is of large and comprehensive significance, and when construed in its usual and ordinary sense, in which it is commonly employed, it expresses the state of being under obligation in law or injustice." "The word 'due' or 'owing' in its ordinary sense means something which is justly owed; that which the law or justice requires to be paid or done." The appellant further relies on the decision of the Supreme Court in Mahjibhai v. Mahibhai (AIR. 1965 S.C.1477) and contends that the liability in the case of restitution under S.144 of the Civil Procedure Code is created by the appellate decree itself and the same is only worked out in a proceeding under S.144, CPC. Subba Rao J. (as he then was) who wrote the majority judgment in the above case observes: "When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree". In Para.24 of the judgment it is further clarified as follows: "Even if it is an execution application, the procedure to be followed and the power of the Court to order a restitution would be confined to S.144 of the Code. Therefore, an execution application for restitution would be governed by S.144 of the Code of Civil Procedure. If the argument of the learned counsel for the appellant be accepted, it will lead to inconsistent positions depending upon whether the appellate decree gave a direction for restitution or it did not. Therefore, an execution application for restitution would be governed by S.144 of the Code of Civil Procedure. If the argument of the learned counsel for the appellant be accepted, it will lead to inconsistent positions depending upon whether the appellate decree gave a direction for restitution or it did not. If it did not, the application would become an original petition; if it did, it would it bean execution application. This inconsistency can be avoided, if such a direction for restitution be implied in every appellate decree setting aside or modifying the decree of the lower Court, even if it does not expressly give such a direction". In this case the appellate decree is dated 15 111968 and hence it is a liability' due before the commencement of Act 11 of 1970 and also it is a liability created by a decree of court. 5. The learned counsel for the respondent relies heavily on the wording of S.144, C.P.C., and contends that when the appellate court varies or reverses the trial court decree under S.144, the court has a duty to place the parties in the position which they would have occupied if the decree which was reversed in appeal was not there. He finds support in the decision of the Privy Council in L. Guran Ditta v. T. R. Ditta (AIR. 1935 P. C.12). In the above decision Lord Atkin has said as follows: "The duty of the Court when awarding restitution under S.144 of the Code is imperative. It shall place the applicant in the position in which he would have been if the order had not been made: and for this purpose the Court is armed with powers (the 'may' is empowering, not discretionary) as to mesne profits, interest and so forth". The learned counsel for the respondent then referred to a decision of the Punjab High Court in Vidya Prakash Puri v. Roshan Lal Malhotra (1964 Punjab L. R.483) and contended that the liability in question will not be a debt to which the provisions of Kerala Act 11 of 1970 will be attracted. It has been held in this case that the amount withdrawn from the Court was not a debt within the meaning of S.2(6) of the Displaced Persons (Debts Adjustment) Act 70 of 1951. It has been held in this case that the amount withdrawn from the Court was not a debt within the meaning of S.2(6) of the Displaced Persons (Debts Adjustment) Act 70 of 1951. We are of the view that on the facts the above decision is easily distinguishable and it cannot have any application to the case before us. It is true that in the above case also the amount was deposited by an order of court and withdrawn by an order of court. But the other facts of the case are such that this decision cannot be applied to this case. 6. The counsel for the respondent then referred to a decision of this Court in Devassia v. Catholic Bank of India Ltd. (1971 KLT. 932) and contended that even if the liability is one which will be a debt within the meaning of S.2(4) of Kerala Act 11 of 1970, that cannot affect the rights of the respondent under S.144 of the Code of Civil Procedure for restitution because in the case of a conflict between a Central Act and a State Act, the former has to prevail. In the above decision it has been held that in the matter of realisation of debts due to a Banking Company which is being wound up it is the provisions in the Banking Regulation Act, 1949 that apply and the provisions of the Kerala Act 11 of 1970 have nothing to do. The reasoning in the above Bench decision is as follows: The Kerala Act 11 of 1970 in pith and substance relates to a matter which is covered by Entry 30 in List II in the Seventh Schedule to the Constitution of India. The Banking Regulation Act, 1949 in pith and substance relates to Entry 43 and/or 45, more particularly to Entry 43 of List I in the Seventh Schedule to the Constitution of India. If there is conflict between the provisions of the two enactments, the provisions of the Banking Regulation Act, 1949 must prevail and that must exclusively govern and control the realisation of debts due to a Banking Company which is being wound up. We are of the view that the above decision is not applicable to the facts of this case. Here the conflict, if any, is with the provisions of the Code of Civil Procedure. We are of the view that the above decision is not applicable to the facts of this case. Here the conflict, if any, is with the provisions of the Code of Civil Procedure. Civil Procedure relates to Entry 13 of List III and as the Kerala Act 11 of 1970 has received the assent of the President of India under Art.254 (2) of the Constitution even if any of its provisions is repugnant to any of the provisions in the Code of Civil Procedure, the provisions of Kerala Act 11 of 1970 will prevail. The above reasoning is supported by a number of decisions. One among them is a decision of the Calcutta High Court in Madhusudhan v. Radharani (AIR. 1971 Calcutta 534). 7. Before we conclude we may refer to a decision of the Madras High Court in Vasantha Rao Sahib Bhonsle v. Narayanaswami Aiyar (1939 (II) MLJ. 745) on a similar question on the Madras Agriculturists Debt Relief Act, 1938 wherein Pandrang Row J. has held: "The definition of the word'debt' found in the Act does, in my opinion, include a liability to make restitution. All that the definition says is that if there is a liability in cash or kind due from an agriculturist whether payable under a decree or order of a civil or revenue Court or otherwise, it constitutes a debt. There was here an undoubted liability on the part of the twenty-ninth defendant to pay in cash as restitution whatever amounts he had drawn from Court in excess of what he was ultimately found to be entitled to under the decree of the appellate Court." 8. On a consideration of all the aspects of the case placed before us by the counsel on both sides we come to the following conclusion. All debts are liabilities but all liabilities are not debts. All debts are not debts to which the provisions of the Kerala Agriculturists Debt Relief Act 11 of 1970 will be attracted. Debts due from agriculturists and debts which do not come under any of the exceptions (a) to (n) of S.2(4) of the Act are debts to which the Act applies. The liability in question is one for restitution created by the appellate decree dated 15-11-1968 and hence a liability due under a decree before the commencement of the Act. It is a liability of an agriculturist. The liability in question is one for restitution created by the appellate decree dated 15-11-1968 and hence a liability due under a decree before the commencement of the Act. It is a liability of an agriculturist. A liability for restitution does not come under any of the exceptions (a) to (n) of S.2(4) also. Then the question is what is the effect of S.144 of the Code of Civil Procedure which insists that on restitution the court 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'. The Kerala Act 11 of 1970 is in pith and substance one relating to Entry 30 in List II of the Seventh Schedule to the Constitution and the State Legislature was fully competent to enact the same. The Code of Civil Procedure is an existing law which can be related to Entry 13 in List III of the Seventh Schedule. As the Kerala Act 11 of 19.70 has got the assent of the President of India under Art.254 (2) of the Constitution, its provisions will prevail over the provisions of the Code of Civil Procedure. So nothing in S.144 of the Code of Civil Procedure can stand in the way. So, the liability that arises by way of restitution is a debt to which Kerala Act 11 of 1970 applies. The appellant will be entitled to all the benefits under Kerala Act 11 of 1970 which are available to him now as per the Act. 9. Before parting with the case, we have to refer to the cross-objections filed by the respondent. The same has to be allowed as the respondent is in law entitled to the interest claimed. The order and decree of the court below are varied to the extent indicated above. The appeal and the cross-objections are allowed with costs. Allowed.