Lala Ishri Mal and Another vs Babu Umrao Singh and Others

Ishri Mal and Sohan Lal Jains brought a suit against Umrao Singh, Sheo Lal and others, also Jains The suit was dismissed by the trial Court, An appeal was made to this Court and the case was pent back but before the decision of this Court was arrive J at, costs which had been awarded to defendants were realised by the defendants from the plaintiff?. The case had been sent back for arbitration and an award was given in favour of Ishri Mal and Sohan Lal. The award ends with the words: Kharcha fariqain zimma fariqain. Ishri Mal and Sohan Lal applied to the Subordinate Judge for restitution of the costs which they had paid in. The application was objected to, and the objection was that the money had been paid to the Treasurer of the Jain Deo Asthan to which the suit had referred. The contention is that the applicants are entitled to the costs and to have restitution. The opposite party rely upon the case of Venkatasami Pillai v. Kuppayes Ammal 14 M.L.J. 377. The facts of that case appear to me to be quite different from the one which is now before me. The parties according to Section 144 of the CPC can ask to be placed in the position which they would have occupied but for the decree which has undoubtedly been reversed, and the Court is bound to make such restitution. We are in no way concerned as to whether the property was given to the Deo Asthan or to any other charity or applied ''to any other purpose. The order of this Court is that Rs. 120 be re-paid to the applicants with interest at the Court rate and costs of the application. A contention was also made to the effect that there was nothing in the decree following the award about costs. I do not think this objection is entitled to weight.