S.M.O. Uthaman Chettiar vs R.M. Nachappa Chettiar and Others

P. Venugopal, J.—Plaintiff is the appellant. Defendants 2 to 4, the legal representatives of the deceased first defendant are the respondents

before this Court. The plaintiff filed a suit, O. S. No. 50 of 1965 on the file of the Court of the Subordinate Judge, Devakottai, against the first

defendant and obtained a money decree for a sum of Rs. 13,967-16 together with subsequent interest en Rs. 12,000 at 6 per cent per annum from

the date of plaint till the date of realisation and proportionate costs. The first defendant admitted his liability to the extent of Rs. 8,486-49 and

preferred an appeal before the High Court in respect of the rest of the decree amount. While the appeal was pending before this Court, the first

defendant filed C. M. P. No 6617 of 1967 and obtained interim stay of execution of the decree. The plaintiff filed an application in C. M. P. No

8513 of 1967 to vacate the stay granted in favour of the defendant, On 19th July, 1967, this Court took up both the petitions and passed a

conditional order directing that the first defendant should deposit Rs. 8,486-49 within one month and a further sun, of Rs. 2,000 within four months

and for the balance the first defendant should furnish security to the satisfaction of the Court of the Subordinate Judge, Devakottai, within four

months from the date of order. The first defendant deposited the amounts as directed by this Court and these amounts were also drawn from

Court by the plaintiff decree-holder. This Court disposed of the appeal and granted a decree only for a sum of Rs. 8,486-49. The first defendant

died and his legal representatives filed an application u/s 144, Civil Procedure Code, to pass a decree for restitution in their favour for a sum of Rs.

2,000 received in excess by the plaintiff. The plaintiff contended that the sum of Rs. 2,000 had gone in satisfaction of the decree amount as

originally passed by the trial Court and has been appropriated as such, and u/s 8(4) of Madras Act IV of 1988, as amended by Act VIII of 1973,

there is no obligation on the part of the plaintiff to refund the excess amount. The trial Court held that the sum of Rs. 2,000 can never be construed

as one paid towards the decree and the deposit was made only to purchase peace by way of staying the execution of the decree and the

provisions of Section 8(4) of Act VIII of 1973, cannot be made applicable to this payment Aggrieved against the order of the trial Judge, the

plaintiff has filed this appeal before this Court.

Learned counsel for the appellant-plaintiff contended that Section 8(4) of Act VIII of 1973, applies only to payments made subsequent to Act

VIII of 1973, coming into force and not to payments made prior to the Act coming into force. A similar contention was put forward with reference

to Section 8(4) of Act IV of 1938, which is in pari materia with Section 8(4) of Act VIII of 1973, and the contention was repelled by this Court in

Ganapathi Subramania Ayyar and Another Vs. Alloor Gopalaswami Naidu and Others, holding that refund of excess amount provided u/s 8(4) of

Act IV of 1938, governs the payments made prior and subsequent to 1st October, 1938 The contention of the learned Counsel for the appellant

that payments made prior to Act VIII of S 973, coming into force will not be governed by Section 8(4) of the Act, has to be repelled. Learned

counsel for the appellant next contended that these excess amounts were made voluntarily and willingly and with the full knowledge of the

provisions of the Act and such excess amounts can be retained by the appellant-creditor in view of Section 8(4). Excess payments voluntarily

made to the creditor or the decree-holder is saved from the opera ion of Section 8(4) if they have been made willingly and voluntarily towards part

or fall satisfaction of the decree and they have been appropriated by the decree-holder for part or full satisfaction of the claim. The circumstances

under which the sum of Rs. 2,000 came to be deposited by the defendants-respondents clearly indicate that it was paid as a condition precedent

for the grant of stay by the High Court. As the first defendant admitted the liability under the decree only to the extent of Rs. 8,486-49 and was

contesting the rest of his liability under the decree, the sum of Rs. 2,000 paid in pursuance of the order of this Court passed in C. M. P. No. 8513

of 1967 can by no stretch of imagination be construed as payment towards the decree, much less a voluntary and willing payment towards the

decretal liability entitling the plaintiff-appellant to appropriate the same towards the decree amount. The payment of Rs. 2,000 by the first

defendant was made while he was contesting the liability under the decree and it was made in pursuance of the orders passed by this Court when

the defendant filed a petition before this Court for stay of execution of the decree. Section 8(4) of Act VIII of 1973 must be taken to refer to sums

which were duly collected from the debtor and which turned out to be excessive as a result of applying the provisions of the Act and it cannot be

understood as justifying the retention of sums recovered by the decree-holder In excess of what was legally due at the time of the recovery Section

8(4) does not, therefore, affect the right to restitution in respect of collections wrongfully made. Inasmuch as this Court has modified the decree of

the trial Court and the decree ultimately confirmed by this Court was only to the extent of Rs. 8,486-49, the sum of Rs. 2,000 realised by the

plaintiff-appellant during the pendency of the appeal cannot be appropriated by the decree-holder and as it represents an amount in excess of what

is legally due to the plaintiff-appellant, the defendants-respondents are entitled to restitution of the sum of Rs. 2,000 as prayed. The order of the

lower Court is accordingly confirmed. In the result the appeal fails and it is dismissed. No costs.