N.S. Ramalingam vs The Mahatma Gandhi Tuberculosis Sanatorium, Sengipatti

Balasubrahmanyan, J.—The Mahatma Gandhi Tuberculosis Sanatorium, Sengipatti by its Chairman, the Collector of Thanjavur, filed a suit O. S. No. 43 of 1962, against one Ramalingam, in the Sub Court, Nagapattinam, for mesne profits for Rs. 9000/- and odd and obtained a decree. Ramalingam appealed to this court against the decree. At the hearing of the appeal, Ramalingam apparently admitted liability to the extent of Rs. 2000/- and for proportionate costs and interest. On this basis, this court, while disposing of the appeal, modified the decree of the trial court and reduced the amount of the decree to Rs. 3485/-. It would appear that by the time this court modified the decree and reduced the decree amount, the judgment debtor Ramalingam had made payments of sums of money to the plaintiff Sanatorium towards the decree amounting in all to Rs. 11,785-94. Since, however, this court had reduced the decree to Rs. 3485, the judgment debtor moved the trial court for restitution under S. 144, C. P. C.

Meanwhile, the plaintiff Sanatorium had made restitution by repaying sums amounting to Rs. 6132- 84, leaving a balance of Rs. 2114- 03. In filing his restitution application, before the trial court, the judgment debtor asked for restitution in the sum of Rs. 2114- 03, and also direct execution as against the properties of the plaintiff Sanatorium, for recovery of that amount. Notice of this restitution application, E. P. 25 of 1973, was given to the plaintiff Sanatorium. It filed a counter affidavit in the said E. P. contending that the amount for which the execution petition was filed, was based on a wrong calculation. It was also submitted on behalf of the plaintiff Sanatorium, that only a sum of Rs. 694-32 was payable to the judgment debtor, and this carried no interest.

The learned Subordinate Judge, Nagapattinam, allowed the restitution. However, since the properties as against which execution was asked for, were not situate within the territorial jurisdiction of his court, he rejected that part of the relief asked for in the execution petition. Subsequently, Ramalingam applied for transfer of the order in restitution for execution to the Subordinate Court, West Thanjavur, where the E. P. was numbered as E. P. No. 150 of 1974. The prayer in the said E.P. was for attachment of the movable properties belonging to the plaintiff Sanatorium, for recovery of the sum of Rs. 2195-78. This petition for execution was again opposed by the plaintiff Sanatorium, on the ground that the judgment debtor was not entitled to restitution, and, in any case, was not entitled to payment of Rs. 2114-03 as claimed.

Before the learned Subordinate Judge, Thanjavur, the judgment debtor Ramalingam submitted that it was not open to the plaintiff Sanatorium to raise these pleas either as to his right to restitution or as to the correctness of the amount claimed. The learned Subordinate Judge, however, proceeded on the footing that the point before him for consideration was--''Whether the petitioner was entitled to claim the amount mentioned in the petition by way of restitution?''. The learned Subordinate Judge then proceeded to make his own computation of what the plaintiff owed the judgement debtor by way of restitution. According to his figure work, the judgment debtor ought, properly, to have claimed Rs. 3145-68. He wondered how the judgment debtor had claimed only Rs. 2195-72. All the same, the learned Judge proceeded to hold that the records did not show how much was actually drawn by the plaintiff from out of the amounts deposited by Ramalingam. In conclusion, the learned Judge observed that since there was a dispute between the parties regarding the correctness of the amount, he could not allow the execution petition. In this view, he dismissed E. P. No. 150 of 1974.

The judgment debtor has now brought the present C. M. A. against the order of the learned Additional Subordinate Judge, Thanjavur, dismissing his execution petition. His learned counsel submitted that the Subordinate Judge had no jurisdiction to go into the question which he had posed for himself while dismissing the execution petition. He submitted that when the trial Court had once determined the amount for which the appellant was entitled to restitution, any court executing that order cannot go behind the order and raise any issue as to whether any restitution was at all available or as to whether the amount determined by the trial court was payable by way of restitution.

I agree with the submissions of the learned counsel. In my view, the nature and function of an order of restitution are the same as those of a decree. Where the restitution is for payment of money, it has got the same effect as a decree for money. It follows that where such an order for restitution is sought to be executed, the executing Court has no jurisdiction to question the order of restitution or to go behind the said order.

In this case, it is not as if the plaintiff Sanatorium did not have any opportunity to go into the correct figure to which the appellant would have been entitled by way of restitution, following the modification of the decree in the suit by this court. As mentioned above, they filed a counter affidavit in the restitution proceedings before the learned Subordinate Judge, Nagapattinam, and the order in restitution was passed after consideration. The plaintiff is not, therefore, entitled to canvass these concluded questions before the executing court.

It was urged by the learned counsel for the plaintiff Sanatorium, that the order passed by the learned Subordinate Judge, in restitution was ex parte. I am unable to accept this submission, having gone through the note papers in E.P. No. 25 of 1973. They show that on behalf of the plaintiff Sanatorium, adjournments had been prayed for and obtained several times for filing a counter affidavit and ultimately, after time had been extended therefore ,a counter affidavit had, in fact, been filed on 18th August 1973, in which, as I mentioned earlier, the plaintiff Sanatorium pertinently raised the question as to the correctness of the amount to which the appellant would be entitled for restitution. In the circumstances stated above, I hold that the learned Subordinate Judge was in error in dismissing the execution petition. His order is, therefore, set aside. The execution petition is restored to his file, and he is directed to dispose of it in accordance with law. The appeal is allowed with costs.