# r,AL BHAGvVANT SINGH v. • RAI SAHIB LALA SRI KISHEN DAS

- **Citation:** [1953] 1 S.C.R. 559
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Bench:** Mehr Chand Mahajan, Das, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-al-bhagvvant-singh-v-rai-sahib-lala-sri-kishen-das-176
- **Pages:** 13

## Headnote

Civil Procedure Code (Vo/ 1908), s. 144-Compromise decreeStipulation to sell property to decreeholder within a week for amoiint
due-Amendment of decree allowing judgment-debtor to pay in instalments, whole amount being payable on default of 8 instalmentsOriginal decree restored by High Court-Sale in execution-Amended
decree restored by Privy Council- Validity of sale-RestitutionU. P. Encumbered Estates Act (1984 as amended in 1989)-Proceedings under s. 4 quashed by Board of Revenue-Sale of judgment
debtor's property before Aniendment Act-Application under Amendnient Act to amend previous application-Whether fresh proceedings
--Validity of sale.
Under a compromise decree the amount due to the plaintiff
was fixed by mutual consent and it was further agreeii that the
defendant should within one week of the date of the decree convey
to the plaintiff immoveable properties sufficient to satisfy the
decree.
The U. P. Agriculturists Relief Act of 1934 having come
into force, the decree was subsequently amended by the Civil
Judge by reducing the amount and -directing that the amount may
be paid in 12 annual instalments with the condition that if three
instalments were in default the whole amount was to become
immediately payable.
The amended decree was set aside by the
Chief Court in 1938. The decreeholder applied for execution, and
a sale deed" was executed by the Civil Judge in 1939 for' the entire
decree amount.
The Privy Council reversed the decree cif the
Chief Court and restored the amended decree of the Civil Judge
in 1944.
The judgment debtor applied for restoration of the·properties with mesne profits by way of restitution:
Held, confirming the decree of the Chief Court, that, as the
judgment-debtor had not obtained any order staying the operation
of the amended decree pending the decreeholder's appeal to the
Chief Court he was bound to carry out the terms of the amended
decree, and, as the Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its
decree did not in any way alter the position of the parties as it
stood under the amended decree, and, the sale was not in consequence of any error in a decree which was reversed on appeal
by the Privy Council, the judgment-debtor was not entitled to
restitution.
Dayal Sardar v. Tari Deshi (I.L.R. 59 Cal. 647) and Gansu
Rani v. Parvati Kuer (A.LR. 1941 Pat. 130) appraved.
195/J
Jan. 31
560
SU!':REMB COURT RBPORTS
[19.53)
1953
The judgment-debtor. in the above mentioned case aJ>plied
under s. 4 of the U. P. Encumbered Estates Act, 1934, for adLal Bhngwa1it ministration of his estate i111936 but the proceedings \Yere qua.shed
Singh
by J;he Board of Revenue in 1938.
As no order for stay a·f exev.
cution was obtained, a sale was effected in execution of the decree
B~i S~hib Lala in :B1ebruary, 1939. The U. P. Encu1nbered Estates (An1endment)
Sr1· Kisheii Das. Act, 1939, can1e into force after the date of the sale and the
judgment-deb\01' applied on the 10th October, 1939, for amending
his former application, but it was ultimately decided by the Chief
Court that the amendment application of 1939 must be treated as
fresh proceedings :
.
Helcl, confirming the decision of the Chief Oourt1 that as the
~
proceedings which were started in 1936 v.•ere quashed by the
Board of Revenue in 1938, \be saie held in February, 1939, was
unaffected by the bar imposed by s. 11 of the Act.
The order
rr1ade on the application of the 10th October was an order on a fresh
application under s. 4 and it had no retrospective effect and could
not affect the validity of the sale. effected when no application
under s. 4 was pending.
CIVIL APPELLATE .JURISDICTION: Civil Appeals
Nos. lOl, 102 and 103 of 1951.
Civil Appeal No. 101 of 1951 was an appeal from
the Judgment and decree dated the 13th March, lfl46,
of the Chief Court of Avadh at Lucknow in First
Civil Appeal No. 132 of 1943 arising o·ut of the Jud

## Text

S.U.R.
SUPRmME COURT REPORTS
559
r,AL BHAGvVANT SINGH
v.
•
RA! SAHIB LALA SRI KISHEN DAS
[MEHR CHAND MAHAJAN, DAS and BHAGWATI JJ.]
Civil Procedure Code (Vo/ 1908), s. 144-Compromise decreeStipulation to sell property to decreeholder within a week for amoiint
due-Amendment of decree allowing judgment-debtor to pay in instalments, whole amount being payable on default of 8 instalmentsOriginal decree restored by High Court-Sale in execution-Amended
decree restored by Privy Council- Validity of sale-RestitutionU. P. Encumbered Estates Act (1984 as amended in 1989)-Proceedings under s. 4 quashed by Board of Revenue-Sale of judgment
debtor's property before Aniendment Act-Application under Amendnient Act to amend previous application-Whether fresh proceedings
--Validity of sale.
Under a compromise decree the amount due to the plaintiff
was fixed by mutual consent and it was further agreeii that the
defendant should within one week of the date of the decree convey
to the plaintiff immoveable properties sufficient to satisfy the
decree.
The U. P. Agriculturists Relief Act of 1934 having come
into force, the decree was subsequently amended by the Civil
Judge by reducing the amount and -directing that the amount may
be paid in 12 annual instalments with the condition that if three
instalments were in default the whole amount was to become
immediately payable.
The amended decree was set aside by the
Chief Court in 1938. The decreeholder applied for execution, and
a sale deed" was executed by the Civil Judge in 1939 for' the entire
decree amount.
The Privy Council reversed the decree cif the
Chief Court and restored the amended decree of the Civil Judge
in 1944.
The judgment debtor applied for restoration of the·properties with mesne profits by way of restitution:
Held, confirming the decree of the Chief Court, that, as the
judgment-debtor had not obtained any order staying the operation
of the amended decree pending the decreeholder's appeal to the
Chief Court he was bound to carry out the terms of the amended
decree, and, as the Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its
decree did not in any way alter the position of the parties as it
stood under the amended decree, and, the sale was not in consequence of any error in a decree which was reversed on appeal
by the Privy Council, the judgment-debtor was not entitled to
restitution.
Dayal Sardar v. Tari Deshi (I.L.R. 59 Cal. 647) and Gansu
Rani v. Parvati Kuer (A.LR. 1941 Pat. 130) appraved.
195/J
Jan. 31
560
SU!':REMB COURT RBPORTS
[19.53)
1953
The judgment-debtor. in the above mentioned case aJ>plied
under s. 4 of the U. P. Encumbered Estates Act, 1934, for adLal Bhngwa1it ministration of his estate i111936 but the proceedings \Yere qua.shed
Singh
by J;he Board of Revenue in 1938.
As no order for stay a·f exev.
cution was obtained, a sale was effected in execution of the decree
B~i S~hib Lala in :B1ebruary, 1939. The U. P. Encu1nbered Estates (An1endment)
Sr1· Kisheii Das. Act, 1939, can1e into force after the date of the sale and the
judgment-deb\01' applied on the 10th October, 1939, for amending
his former application, but it was ultimately decided by the Chief
Court that the amendment application of 1939 must be treated as
fresh proceedings :
.
Helcl, confirming the decision of the Chief Oourt1 that as the
~
proceedings which were started in 1936 v.•ere quashed by the
Board of Revenue in 1938, \be saie held in February, 1939, was
unaffected by the bar imposed by s. 11 of the Act.
The order
rr1ade on the application of the 10th October was an order on a fresh
application under s. 4 and it had no retrospective effect and could
not affect the validity of the sale. effected when no application
under s. 4 was pending.
CIVIL APPELLATE .JURISDICTION: Civil Appeals
Nos. lOl, 102 and 103 of 1951.
Civil Appeal No. 101 of 1951 was an appeal from
the Judgment and decree dated the 13th March, lfl46,
of the Chief Court of Avadh at Lucknow in First
Civil Appeal No. 132 of 1943 arising o·ut of the Judgment dated the 25th September, 1943, of the Court of
Special J\1dge, 1st Grade, Sitapur in E. E. Act Suit
No. 27/l of 1938.
·
Civil Appeals Nos. 102 and 103 of 1951 were
appeals from the Judgment and Decree dated tlre
13th March, 1946, of the Chief Court of Avadh at
Lucknow in Execution of Decree Appeals Nos. 103
of 1944 and 23 of 1945 arising out of the Judgment
dated the 16th November, 1944, of the Court of
Additional Civil .Judge, Lucknow, in Miscellaneous
Case No. 70 of 1944.
B. I. Bishan Singh for the appellant.
M. C. Setalvad (Nazimuddin Siddique, with him) for
the respondent.
1953.
January 21.
'rhe Judgment of the Court
\Vas deJi,·ered by MAHAJAN J.
. ..
J
-.(
-
S.C.R.
SUPREME COURT REPORTS
561
MAHAJAN J.-Shortly stated, the facts ,giving rise
1953
to these three appeals are these:
La! Bhagwa nt
On the 4th July, 1933, Rai Bahadur Lala Hari
Singh
Kishen Das obtained from the court of the civil judge,
v.
Sitapur, a final compromise decree in the sum of R~i S~hib Lala.
Rs. 3,88,300-'2-6 with pendente lite and future interest Sn Kishen Das.
and costs, on the
foot of two simple· mortgages
Mahajan J.
executed in his favour in 1928 and 1931 by
Thakur Raghuraj Singh. It was provided in the
compromise that Raghuraj Singh would within a
week sell to Hari Kishen Das at agreed prices some
villages out of the mortgaged property selected by
him and sufficient to satisfy the decree.
He reserved
to himself the right to get back the sold· villages
after five years and before the expiry of fifteen years
on payment of the stipulated prices.
'rhe computation of the price of the sold lands was to be made
in the manner laid down in clause (6).
Hari Kishen Das made a selection of eight villages,
and deeds of sale and relinquishment in respect of
them were duly prepared and executed on 4th July,
1933.
Before they could be presented for registraition, the parties received information that a notification for assumption by the Court of W a.rds of the
management of the talukdar's estate had been issued
a.nd that it was likely to render the conveyances ineffectual. In view of the impending notification the
sale transaction fell through and a refund was
obtained oi the amount spent on the stamp papers.
On the 20th January, 1934, the Court of Wards
decided that it would not take the estate under its
supervision. Hari Kisben Das then revived his
demand against the judgment-debtor for the completion of the sale deeds but the judgment-debtor did
not pay any heed to his request with the result that
on 26th May, HJ34, be made an application for execution of the compromise decree.
'ro the execution
of this decree a number of objections we.re raised by
Raghnraj Singh.
Before the disposal of these objections the U.P. Agriculturists' Relief Act (XXVII of
1934) and the U.P. Encumbered Estates Act (XXV
562
SUPREME COURT REPORTS
(1953]
1953
of 1934) came into operation.
Under the provisions
of Act XXVII of 1934, the judgment-debtor became
La! Bhagwa"t entitled to the amendment of the decree by reduction
Singh
v.
of•interest, and for payment of the decretal sum in
R•i Sahib Lala instalments. Under the other Act, a landlord debtor
Sri Kishen Das. whose property was encumbered could apply to the
court for the administration of his estate for 1iquidaMahajan J.
tion of his debts.
Raghuraj Singh was not slow in
seeking the aid of these laws to reduce the amount
of his indebtedness and to save his property.
He
made applicatior1s under both the Acts. In the
application under the Relief Act he prayed for the
scaling down of the amonnt .of the decree and for
instalments. In the application under section 4 of
the Encumbered Estates Act he asked for liquidation
of his debts by the civil judge.
On the 11th January, 1936, the civil judge of Sitapur altered the decretal amount of Rs. 3,88,300-2-6
to Rs. 3, 76, 790-4-3 exclusive pf costs and future
interest and directed Raghnraj Singh to pay the
money in twelve equal annual instalments payable in
the month of December of each year, the first instalment being payable in "December, 1936, and also
provided that in the case of default in payment of
three instalments, the whole amount then due woulii
become immediately payable. Against this order,
Hari Kishen Das filed an application in revision to
the Chief Court and was successful in having the
amended decree set aside on 15th February, 1938.
In the proceedings commenced under the Encum-.
b~red Estates Act on 29th October, 1936, Ragburaj
Singh obtained an order under section 6 of the Act
but this order was eventually quashed by the Board
of Revenue on 13th August, 1938, and the debtor's
application under section 4 was dismissed.
Having succeeded in bis application in re>ision in
the Chief Court, Hari Kishen Das revived the proceedings in execution of the compromise decree and
called upon 'Raghuraj Singh to execute a sale deed
in respect of the selected villages in bis favour.
On
his failure to comply with this demand, the court
,..
• -
S.C.R. SUPREME COURT REPORTS
563
executed a deed of sale in his favour on 24th Febru1953
ary, 1939, and in due course delivered to him possesLal Bhagwa .. t
sion of the property covered by .the deed.
•
Singh
Thakur Raghuraj Singh died in the year 1941,
v.
leaving him surviving the present appellant as his R~i Sahib Lala
successor in interest.
An appeal had .been taken by Sn Kislien Das.
him against the decision of the Chief Court dated
Mahajan J.
15th February, l 938, setting aside the amended decree
to His Majesty in Council.
By an order of His
Majesty in Council passed on 20th January, 1944, the
decision of the Chief Court dated 15th February,
1938, was reversed and the amended decree passed
by the Civil Judge of Sitapur on 11th January, 1936,
was restored.
Liberty was given to the appellant to
apply to the court of the civil judge, Sitapur, for such
relief as he might be entitled to with reference to the
recovery of possession of the property.
In view of the decision of the Privy Council, Bhagwant Singh (appellant) made an application for
restoration of possession and for recovery of profits
wrongfully reali1rnd by Hari Kishen Das and after his
death by his adopted son Sri Kishen Das.
This
application was strenuously resisted by the creditor
and it was pleaded by him that even under the
amended decree a sum of Rs. 4,31, 148-9-9 including
interest and costs had become due to the decreeholder
on the date of the sale since three instalments which
had till then fallen due had remained unpaid and the
default clause had come into operation and the sale
· in execution could not be sett aside, as it has not
caused any injury to the judgment-debtor and had not
in any way caused loss to him in the absence of proof
that he had the money to pay the instalments.
'rhe subordinate judge allowed the application for
restitution conditional on Bhagwant Singh paying
within two months the accumulated sum that had
fallen due to the decreeholder under the unpaid in-
.stalments up to the date of the order. He held that the
arrears up to December, 1943, came to Rs. 3,58,914-8-9,
and deducting from this amount the net profits
73
564
SUPREME COURT REPORTS
[1953]
19~8
realized during the period of his possession amounting to Hs. 73, 294-8-5 and the cMts of appeal allowed
Lal Bhngwant
Singh
by the Privy Council, a sum of Rs. '2,81),620-0-4 was
v.
du~ and directed that if this amount was not depositRai Sahib Lala ed in court within two months, the application would
Sri Ki•hen Das.stand dismissed.
Bhagwant Singh applied for extension of time but this application was summarily
Mahajan J. dismissed.
Rai Sahib Sri Kisben D:>s and Bhagwant Singh
both appealed to the Chief Court against this deci-
~
sion.
'l'he appeal of Sri Kisben Das was numbered
as 103 of 1944.
His contention was that the judgment-debtor was not entitled to restitution at all.
The appeal of Bhagwant Singh was numbered as 23
of 1945.
His grievance was that he was entitled to
restitution without any condition.
The Chief Court
allowed the decreeholder's appeal (103 of 1944) with
costs and dismissed the judgment-debtor's appeiol
('23 of 1945) but without costs, and dismissed the
application of the judgment-debtor for restitution on
the 13th March, 1946. Appeals 102 and 103 of 1951
arise out of this decision.
·
Appeal No. 101 of 1951 arises out of another
decision of the Chief Court dated I.3th March, 1946,
which confirmed the decree dated 26th September,
1943, of the special judge of Sitapur under the Encumbered Estates Act.
'l'he facts about this matter
are these:
As already stated, ~m 28t\i October, 1936, Thakur
Haghuraj Singh applied under section 4 of the U.P.
)
Encumbered Estates Act (XXV of 1934) for administration of his estate so as to liquidate his debts
amounting to about 14 lakhs.
On 13th August,
1938, tbe Board of Revenue quashed the proceedings
under the Encumbered Estates Act initiated by
'l'bakur Haghuraj Singh.
As no order for stay of
execution proceeding.s was obtained by Raghuraj
Singh
from
the
Chief
Court or ·the Privy-
. Council, the
civil
judge
to
whom
the execution proceedings had been, tra,nsferred, on 13th
r
---
::;.C.R.
SU.PREME COURT REPOR'fS
565
February, 1939, ordered the judgment-debtor to execute a sale deed and on his makin 0(J a default the civil
1958
Lal Bhagwinl
judge on '24th February, 1939, execnted a sale deed
S.ingh
on behalf of the judgment-debtor in favour of .l~ai
v.
Bahadur Hari K1she11 Das.
The 0 . .P. Encumbered Rrii Sahib Lala.
Estates Amendment Act (XI of ] 939) came into Sri KishenDas.
operation after this sale. It allowed the applicants
Mahajan J.
to amend their applications, proceedings in respect
of which had been quashed previously.
On the 10th
October, 1939, Raghuraj Singh applied for amendment
of his application.
This application was allowed by
the sub-divisional officer who passed an order under
section 6 of the U .P. Encumbered Estates Act on
18th October, 1939, and forwarded the amended
application to the special judge, .first grade, Sitapur.
On 31st July, 1940, the special judge passed an order
to the effect that the proceedings would start afresh.
Raghuraj Singh went up in revision to the Uhief
Court against this ord~r contending that the proceedings should not be deemed as fresh proceedings.
The Chief Court dismissed the revision on 9th December, HJ40. On a notification· issued under section
11 of the _b;ncumbered Estates Act, Hari Kishen Das
filed objection on 14th August, h142, under section
11 clail'1ing that the villages sold to him were his
property and wore not liable to be attached and sold
for the debts of Raghuraj Singh.
'fhis objection was
contested by the debtor.
The special judge by his
decree dated 25th September, HJ43, declared Rai
Bahadur Hari Kishen Das to be the proprietor of all
the eight villages included in the sale deed of 24th
February, 193\:1.
Against the decree of the special
judge an appeal was filed in the Chief Court which
confirmed that decree on 13th March, 1946. Appeal
No. 101 of 1951 now before us is directed against
that decree.
This appeal can be shortly disposed of.
The proceedings under the _b;ncumbered .Estates Act having
been quashed by the Board of Revenue in August,
1938, the sale held in February, 1939, was unaffected by the bar imposed by section 7 of the Act. lu
566
SUPREME ootJR1' REPO R'fS
tHJ53)
wsa
view of the decision of the Chief Court dated 9th
December, 1940, the appellant could not be allowed
Lal Bhagwant
h
·
h
h
d
h
Singh
to agitate t e_pomt t at t e procee in gs s ould have
v.
beep deemed to be pending in February, 1939, beRai Sahib Lala cause of the provisions of the amending Act.
This
Sri Kish•?• Das. point was stressed before us by the Jearued counsel
for the appellant and he contended that the proviMahajan J.
sions of the amending Act XI of 1939 should have
been given retrospective operation and the date of
his original application shonld 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
section 6 on 18th Oc~ober, 1939, was made on a fresh
application under section 4 of the U.P. Encumbered
Estates Act preferred on 10th October, 1939, and
this could not affect the validity of the sale deed
executed at a time when no application under section
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 schedule III of the Code of
Civil Procedure.
'rhe point was not argued before
us in this appeal.
This appeal therefore fails and is
dismissed with costs.
•
As regards appeals Nos. 102 and 103, the main
point for decision is whether in the circumstances of
this case the appellant was entitled to restitution by
way of restoration of possession and grant of mesne
profits after the reversal of the compromise decree by
the Privy Council and the restoration of the amended
decree as passed by the civil judge under the Relief
Act.
Having regard to the provisions of section 144 of
the Code of Civil Procedure, the Chief Court was of
the opinion that the sale in 1939 was inevitable and
conld not have been avoided if the amended decree
had been then in force and that if it was set aside it
wonld confer on the appellant an advantage to which
pis predecessor was not entitled, he having defaulted
)
• ..
•
,i..
S.C.R.
SUPREME COURT REPORTS
567
in the payment of three instalments before the sale
1953
took place.
'rhe following passage from the judgLal Bhagwant
ment of the Chief Court expresses the view that it
Singh
took on this point :-
•
v.
"For purposes of section 144 we have in the words R11i Sahib Litl11
of the section 'to place the parties in the position Sri KishenDas.
which th~y would have occupied but for such decree
J.Iahajrin J.
or such part thereof as has been varied or reversed.'
So placing them the issue which falls for determination is.whether the judgment-debtor would have paid
the accumulated amount of three instalments namely
Rs. 1,37,839-1-11 in December, 1939.
On the evidence the lower court. has come to the conclusion
with which we agree that Thakur Raghuraj Singh
owed no less than rupees fourteen lakhs to other
creditors, and computing the v0,lue of the entire
landed property at the rate specified in the compromise of 1133, it was only rupees nine lakhs. Lal
Bhagwant Singh produced no evidence to 'establish
that his father was otherwise in a position to pay the
amount of three instalments in December, 1938. We
may mention that no objection has been taken at the
bar to the estimate of indebtedness or to the evaluation of the estate.
Taking them, therefore, to be
correct it is impossible to believe that the judgmeiltdebtor could have prevented the sale on 24th February, 1939, if the parties were then governed by the
decree of 1936.
The result which followed was
inevitable and cannot be attributed solely to the
erroneous order passed by this court in February,
1938."
In our opinion, no excepti~n 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 11th January,
1936, must be deemed to have been subsisting all
a.long. 'All the terms of the compromise were embodied in the amended decree and there was no difference in the tw@ decrees except for the reduction of
568
SUPREME COUHT HEPORTS
[1953)
1953
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
Lal Bhagwant
Singh
and for provision for instalments.
The compromise
••
d~cree with the necessary adaptations and amendRai Sahib,Lala ments became the amended decree and was enforceable
Sri Kishe,.Das.as such. It gave the judgment·debtor, an opportunity
to satisfy the decree by instalments if he committed
MahajanJ.
l
d
h
f
b ·
no defau t an to save t e property
ram emg 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 pendeucy of the decreeholder's appeal before the Chief Court the judgmentdebtor did not obtain any order staying the operation
of the amended decree.
He was th us boun'd to carry
out the terms of that decree but be failed to pay any
of the instalments that fell due in 1986 or 1937.
'fhe third instalment, it is true, fell nue 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. ln 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 decreeholder an amount
equal to the amount of one instalment so that three
instalments will not be in. arrear, or to obtain au 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 the payment.
He, however, did
nothing and adopted the attitude that he need make
no payment and considered himself absolved. from
satisfying either the original decree or the amended
decree. 'fhe result of this attitude was that the
whole of the decretal amount became due on his
,
S.O.R.
SUPREME COURT REPORTS
569
failure to pay the third instalment provided for under
1963
the amended decree in December, 1938, and he Lal Bhagwa t
thus lost the benefit of paying the decretal amount
Singh "
by instalments. The amount due from him .in
v
February, 1939 under the decree was the same sum R~i Sahib Lala
for which the property was sold in execution of the Sn Kishen Das,
original decree.
In this situation it cannot be said
Mahajan J.
that there was any alteration 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 sale made in February,
19'39, could not possibly be regarded as one under
the amended decree but could only have been made
iri consequence of the original compromise decree,
and that compromise decree having been superseded
and the amended decree having been restored, the
sale held under the rever,ied decree would surely have
to be set a,side.
On the other hand, if the sale could
not have been avoided even if the amended decree
which was eYentually restored bad been in operation
at the time of the sale by reason of default of payment of three instrdments 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 re:i11lt 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 injary was caused to the judgrrientdebtor by the sale held in February, 1931, it was our
duty to undo the wrong caused to him.
It, however,
cannot be said that in this case any wrong bas been
done to the judgment-debtor which we are called
upon to redress, It is not possible to bold that he
·~
570
SUPREME COURT REPORTS
[1953]
1953
was under no obligati6n to satisfy either one or ,the
L 1 B-;:-
t other of the two decrees, and that he was absolved
• Sin';;:.. from satisfying the instalmenLdecree because it had
v..
·been set aside by the Chief Court and he was also
Rai B'•hib Loia_ absolved from satisfying the original decree because
Sri Kish•~ Das. it was later on set aside by the Privy Council. Having
, -
·
himself appealed to the Privy Counc·il for the resMahai""_~· toration of the instalment decree, it was obligatory on
him to carry out the terms of that decree if he wanted
to take advantage of its provisions. Having defaulttld 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 granted, it would
· result in doing not only an injuetice but a wrong to
the decreeholder 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 seleGJted by him in his favour towards
satisfaction of this decretal debt. If this sale is set
aside and possession of eight villages is restored to the
judgment-debtor and mesne profits are decreed in his
favour, the decreeholder 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 de-
•
creed restoration of possession of the eight villages
in favour of the appellant conditional on his paying
the amount due to the decreeholder 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 re.versa! of a judgment the law raises an obligation on the party to the record who reQeived the.
•
....
' .
s.c.R.
SUPREME COURT REPORTS
571
benefit of the erronP')US judgment to make restitution
195
to the other party for what he had lost and that it is L l B-;:-
the duty of the court to enforce that obligation
"' Sin:~wa.nt
unless it is shown that restitution would be clearly
v.
contrary to the real justice of the case.
The decree- Ra.i Sahib Lala
holder in the present case has derived no advantage Sri Kishen Da.s.
to which he was not entitled and the judgment-debtor
MahajanJ.
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 decreeholder. In the words of Rankin
C. J. in Dayal Sardar v. Tari Deshi(1), the judgmentdebtor is not entitled to reqover 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. Parvati
Kuer (2), 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 section 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 t4is case have apposite application to the faets and circumstances of this case.
For the reasons given above we are of the opinion
that there is no merit in either of these appeals anti
we dismiss both of them with costs.
Appeals dismissed.
Agent for the appellant: 0. P. Lal.
Agent for the respondent: Rajinder Narain.
(1) (1932) I.L.R. 59 Cal. 6f7,
74
(•) A.I.R. 1941 Pat. no.
.'