Case: Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das

sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If the judgment-debtor could have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to the judgment-debtor by the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to the judgment-debtor which we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of the judgment-debtor for restitution was wanted, it would result in doing not only an injustice but a wrong to the decree-holder and the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to the judgment-debtor and mesne profits are decreed in his favour, the decree-holder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place the judgment-debtor in a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the deeree-holder under the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by the judgment-debtor as he has no means whatsoever to make any payment. 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 the 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 restitution would be clearly contrary to the real justice of the case. The decree-holder in the present case has derived no advantage to which he was not entitled and the judgment-debtor has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decree-holder. In the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647 , the judgment-debtor is not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, the judgment-debtor was clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130 , that where a judgment-debtor could not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and the judgment-debtor could not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In view of the decision of the Chief Court dated 9-12-l940 the appellant could not be allowed to agitate the point that the proceedings should have been deemed to be pending in February 1939 because of the provisions of the amending Act.This point was stressed before us by the learned Counsel for the appellant and he contended that the provisions of the amending Act, 11 of 1939, should have been given retrospective operation and the date of his original application should have been treated as the date of the start of the proceedings under the Encumbered Estates Act. This contention, in our opinion, was rightly negatived in the Courts below, and it was rightly held that the order made under S. 6 on 18-10-1939 was made on a fresh application under S. 4, U. P. Encumbered Estates Act, preferred on l0-10-1939 and this could not affect the validity of the sale deed executed at a time when no application under Sec. 4 was pending. It was argued in the Courts below that the sale deed was a nullity because it was executed while execution proceedings were pending before the Collector under Sch. III, Civil P. C.Having regard to the provisions of S. 144, Civil P. C., the Chief Court was of the opinion that the sale in 1939 was inevitable and could not have been avoided if the amended decree had been then in force and that if it was set aside it would confer on the appellant an advantage to which his predecessor was not entitled, he having defaulted in the payment of three instalments before the sale took place.In our opinion, no, exception can be taken to the judgment of the Chief Court in the facts and circumstances of this case and both these appeals would therefore have to be dismissed. On account of the order of His Majesty in Council the amended decree passed by the Civil Judge, Sitapur, on 11-1-1936 must he deemed to have been subsisting all along. All the terms of the compromise were embodied in the amended decree and there was no difference in the two decrees except for the reduction of the sum due from Rs. 3,88,300/2/6 to Rs. 3,76,790-4-3 and the reduction of pendente lite and future interest and for provision for instalments. The compromise decree with the necessary adaptations and amendments became the amended decree and was enforceable as such. it gave the judgment-debtor an opportunity to satisfy, the decree by instalments if he committed no default and to save the property from being sold in satisfaction of it but in case the whole amount of the decree became due according to its terms or if any portion of it remained unpaid it yet had to be satisfied in the same manner as the original compromise decree. During the pendency of the decree-holders appeal before the Chief Court the judgment-debtor did not obtain any order staying the operation of the amended decree. He was thus bound to carry out the terms of that decree but he failed to pay any of the instalments that fell due in 1936 or 1937. The third instalment, it is true, fell due in December, 1938 after the amended decree had been set aside by the Chief Court but the judgment-debtor had appealed for its restoration to the Privy Council. He should therefore have taken steps to protect himself against being in default with payment of three instalments. In order therefore to avoid the default which he would otherwise commit by non-payment of the third instalment it was obligatory on him to pay or offer to pay to the decree-holder an amount equal to the amount of the instalment so that three instalments will not be in arrear, or to obtain an order from the Privy Council absolving him from complying with the terms of the amended decree set aside by the Chief Court, even if it was eventually restored. Failing that, he should have obtained a fresh order from the Privy Council fixing the instalments and time for thehowever, did nothing and adopted the attitude that he need make no payment and considered dared himself absolved from satisfying either the original decree or the amended decree. The result of this attitude was that the whole of the decretal amount became due on his failure to pay the third instalments provided for under the amended decree in December 1938, and he terms lost the benefit of paying the decretal amount by instalments. The amount due from him in February 1939 under the decree was the same sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alternatively in the position of the parties by the Privy Council setting aside the compromise decree and restoring the decree passed by the Civil Judge, Sitapur, in 1936. The position would have been the same if that decree was a subsisting one, and was in execution. If thecould have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the same made in February 1939 could not possibly be regarded as one under the amended decree but could only have become in consequence of the original compromise decree and that compromise decree having became superseded and the amended decree having been restored, the sale held under the reversed decree would surely have in be set aside. On the other hand, if the sale could not have been avoided even if the amended decree which was eventually rested had been in operation at the time of the sale by reason of default of payment of three instruments and the sale was also a necessary consequence under the decree of the Civil Judge and was inevitable, then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a Court to take care that its acts do not injure any of the suitors and if any injury was caused to theby the sale held in February 1939 it was our duty to undo the wrong caused to him. It, however, cannot be said that in this case any wrong has been done to thewhich we are called upon to redress. It is not possible to hold that he was under no obligation to satisfy either one or the other of the two decrees, and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the privy Council for the restoration of the instalment decree, it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of it; provisions. Having defaulted in this, he must take its consequences, which are now different from the consequences of the original decree. Indeed, if in this case the prayer of thefor restitution was wanted, it would result in doing not only an injustice but a wrong to theand the court would not be acting fairly and rightly towards him. As already said, in February 1939, both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to get a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages it restored to theand mesne profits are decreed in his favour, thewould be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity: it would place thein a position of advantage to which he is not entitled. The executing Court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to theunder the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial Judge, was not availed of by theas he has no means whatsoever to make any payment. 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 the 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 restitution would be clearly contrary to the real justice of the case. Thein the present case has derived no advantage to which he was not entitled and thehas lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by theIn the words of Rankin C. J, in Doyal Sarkar v. Tari Deshi, 59 Cal. 647 , theis not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, thewas clearly not entitled to restitution. It was held in Gansu Ram v. Mt. Parvati Kuer, AIR 1941 Pat. 130 , that where acould not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before, instead of after the sale, and thecould not invoke the provisions of S. 144, except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case.