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Judgment
Kuppuswami Ayyar, J.—The appellants were the legal representatives of the fourth defendant in O.S. No. 1 of 1927 on the file of the
Subordinate Judge''s Court of Chittoor and the appeal arises out of proceedings by way of restitution consequent on the modification of the decree
passed in O.S. No. 1 of 1927 under the orders of the appellate Court. The suit was for the recovery of the additional amount paid by the plaintiff
over and above what he was bound to pay in respect of the property. He claimed in respect of the amount sought to be recovered a charge on
several villages comprised in the Karvetnagar Zamindari. The decree passed on 30th March, 1929, by the Subordinate Judge''s Court was for Rs.
73,000 and odd. Guntapalli was one of the 13 villages comprised in Schedule B of the plaint over which a charge was claimed and under the
decree the charge was given over that village and a few others to the extent of three-tenths only of the decree amount. After the decree was
passed the village of Guntapalli in which the appellants claim an interest was brought to sale and sold for Rs. 900 on 12th Jujy, 1933. Subsequently
on appeal the amount decreed was reduced to Rs. 2,780 odd and even that liability was directed by the appellate Court to be apportioned by the
lower Court as between the several villages as per Section 45 of the Madras Revenue Recovery Act in so far as B schedule properties of which
Guntapalli was one was concerned. This appellate decree was passed long subsequent to the sale of that village. The decree-holder was the
purchaser and he Sold the village to the second respondent on 29th November, 1934, prior to the passing of the appellate decree.
After the appellate decree was passed a petition was filed in the Subordinate Judge''s Court for apportioning the liability as between the several
villages over which there was the charge. That petition, E.P. No. 26 of 1937, was filed on 26th October, 1936. The fourth defendant whose legal
representatives the present appellants are, filed a counter to that petition on 14th December, 1937, in which he contended that the sale in respect
of this village must be deemed to have been cancelled by reason of the variation of the decree and that the village will have to be re-delivered to
the judgment-debtors and that it was only after that was done that the apportionment should be made. During the pendency of that petition this
petition out of which the present appeal arises, namely, E.P. No. 35 of 1941 was filed praying for the re-delivery of the properties by reason of the
fact that the petitioners are entitled to get the village by way of restitution as the sale must be deemed to have been set aside by the variation in the
decree in execution of which the village was brought to sale. Various pleas were raised. One of them was that the petition was barred by limitation
as it was filed more than three years after the date of the appellate decree modifying the original decree. Another contention was that the sale
cannot be said to have been set aside by reason of the modification of the decree as the second respondent claimed to be a bona fide purchaser
for value whose rights could not be affected by the variation of the decree. The learned Subordinate Judge held that the petition was barred by
limitation and that the petitioners were not entitled to treat the sale as having been set aside. He also made the observation that the second
respondent was a bona fide purchaser for value. But as he found that the petition was barred by limitation he dismissed the same. Hence this
appeal.
The points that arise for consideration are (1) whether the petition was barred by limitation, (2) whether in the circumstances of the case the sale
must be considered to have been set aside by reason of the variation in the decree, and (3) whether the second respondent was a bona fide
purchaser who would not be affected by the variation of the decree in appeal.
It is not disputed that the petition is governed by Article 182 of the Limitation Act. Then the next point for consideration is which is the decree
which would give the petitioners the right to claim restitution. The learned Subordinate Judge has proceeded on the basis that the decree of the
appellate Court varying the decree but directing an apportionment to be made of the amount mentioned in the decree of the appellate Court as
between the various villages over which a charge was claimed was the starting point of limitation. It would be so if that decree had been complete.
That decree did not fix what amount was payable in respect of the various villages over which the charge was claimed. The charge was not given
for the entire amount over all the villages. Each village was liable only to a portion of the amount and that had not been determined. In
Sundararama Reddi v. Raghava Reddi (1921) 42 M.L.J. 315, there is the following observation:
It was argued that any reduction in the amount of a decree affects the position of the judgment-debtor inasmuch as it renders it easier for him to
satisfy the decree and prevent the sale of his property in execution. No doubt where the reduction is large this may be so; and whether it is so or
not, must be a question of fact. But in the present case the reduction is so slight that it cannot be seriously contended that respondents could have
satisfied a decree for Rs. 7,4.95 but could not raise the extra Rs. 200 and no such allegation has ever been made.
This observatidn seems to indicate that it is not every variation of a decree by an appellate Court that would entitle a judgment debtor whose
property has been sold in execution of the original decree to put forth a claim for restitution on the basis that the sale is invalid and that the extent of
variation will be one of the circumstances that will have to be taken into consideration in considering how the restitution should be made. In this
case the charge was for different amounts over the several villages; as the appellate decree did not fix the liability in respect of each village it cannot
be said that there are enough circumstances from which the Court could predicate whether there was justification for ordering restitution by setting
aside the sale of one of those villages or not. So I think in the particular circumstances of the case the starting point for limitation will be the date on
which the liability in respect of that particular village was fixed and that was fixed only in 1942. I therefore find that that petition was not barred by
limitation.
The next point for consideration is whether this is a case in which from the mere variation of the decree it could be said that the sale must be
considered to have been set aside. I do not think so. It is not the petitioner''s case, nor has it been averred anywhere, that if they had been aware
of the decree they would have been in a position to pay Rs. 600 in cash on the date of the sale and avoid the sale. That is not averred even in the
appeal memorandum, nor is there any evidence let in on that point. Considering the amount for which the decree was passed and the amount for
which the property was sold I should think that this is a case in which the only way in which restitution could be ordered would be by directing the
decree-holder purchaser to refund the additional amount which was realised by the sale of the property over and above the amount for which the
property could be sold. The learned Subordinate Judge himself finds this, but he had to dismiss the petition because the petition was barred by
limitation.
In view of the above finding it is unnecessary to go into the other points raised in the appeal at the instance of the second respondent.
In the result, the order of the lower Court is set aside and instead there will be an order directing the first respondent to pay the appellant Rs.
287-6-11 with interest thereon at six per cent per annum from the date on which the first respondent obtained possession of the property, namely,
26th October, 1933, and costs in both the Courts.