1. This appeal is directed against an order for restitution.The facts material for the determination of the questions in controversy arenot in dispute and may be briefly set out. On the 11th December 1899 theappellants, members of a family of Goswamis, obtained a decree for moneyagainst a large number of defendants, members of a family of Mitras. Executionwas taken out from time to time, but practically to no purpose. On the 6thJanuary 1909 an application for execution was made, more than three years afterthe date of the previous application. Objection was thereupon taken on the 3rdFebruary 1909 by the judgment-debtors that the application was barred bylimitation. This objection was registered and numbered as a separateproceeding, and was overruled on the 5th August 1909. Five of thejudgment-debtors then appealed to this Court on the 10th May 1910. The appealwas decreed on the 9th January 1914 as regards four of the appellants and wasdismissed as regards the other. This Court held that the bar of limitation wasavailable to the judgment-debtors, except to the one who had made anacknowledgment within the meaning of Section 19 of the Limitation Act, andproceeded to give a direction in the decree for restitution in the followingterms: "The result is that this appeal is allowed in so far as theappellants other than Jogendra Prosad Mitra are concerned, and any sumsbelonging to them which may have been taken away by the decree-holders underthe order of the Court below must be refunded at once." To make this orderintelligible, it is necessary to state what had happened in the Court below inthe interval. On the 5th July 1909, while the application for execution made onthe 6th January 1909 was still" under consideration, the decree holdersmade a fresh application for execution, with a view to attach funds in Courtwhich stood to the credit of two of the judgment-debtors. The decree-holdersdesired that this application should be consolidated with the previousapplication which was for execution by attachment and sale of moveables ownedby the judgment-debtors. The judgment debtors objected to the amalgamation ofthe two applications, and on the authority of the decision in Sheikh AhmedChowdhry v. Shahzada Khatoon 7 C.L.R. 537, the Court directed the subsequentapplication to be registered and numbered as a separate proceeding. There werethus three proceedings on the records of the Court, namely, the twoapplications for execution made on the 6th January and 5th July 1909,respectively, and the objection case initiated on the 3rd February 1909. Theobjection case raised a question which went to the root of both theapplications for execution, because if the objection prevailed, no relief couldbe granted to the decree-holders on the basis of either application. This wasevidently in view when the Court directed on the 3lst July and 2nd August 1909that the second application was to be put up along with the first applicationand the objection case. The objection case, as we have seen, was dismissed onthe 5th August 1909. On that date we find it recorded, in the order sheet ofthe case on the second application, that as the objection had been disallowedafter contest, the decree-holders were to take steps. The decree-holdersthereupon applied for payment of the fund in deposit in Court to the credit oftwo of the judgment-debtors. There was an ad interim stay of proceedings underthe orders of the District Judge passed at the instance of thejudgment-debtors; but the stay order was ultimately withdrawn on the 25thSeptember 1909, as the judgment-debtors had failed to show that thecircumstances of the decree-holders were such that there would be any difficultyin obtaining restitution, should the judgment-debtors ultimately succeed intheir appeal in the objection case. Here it may be observed parentheticallythat the judgment-debtors had lodged an appeal before the District Judgeagainst the order in the objection case; it ultimately transpired, however,that the appeal lay to the High Court, because the decree, though for a smallersum than Rs. 5,000, had been made in a suit valued at above Rs. 5,000; it wasfor this reason that the appeal in the objection case was not lodged in thisCourt till the 10th May (sic). To return to the narrative of events in theCourt below, we find that after the stay order had been withdrawn by theDistrict Judge on the 25th September 1909, the Subordinate Judge on that veryday directed payment to the decree-holders of the fund in Court. No appeal waspreferred against this payment order; none, indeed, could have been profitablypreferred, for payment could be resisted only if the decree was barred bylimitation, and that was the very point involved in the appeal against theorder in the objection case. After the appeal in the objection case had beendecreed in this Court, the two judgment-debtors, whose deposit had been takenaway by the decree-holders, applied to the Court below for restitution on the30th May 1914. The decree-holders objected substantially on six grounds,namely, first, that the sum in question was not covered by the direction forrestitution made by this Court in the appeal against the order in the objectioncase; secondly, that restitution should not be granted, as no appeal had beenpreferred against the payment order, and what had been reversed by this Courtwas not the payment order but the determination in the objection case that thedecree Was not barred by limitation; thirdly, that as the effect of Section 28of the Limitation Act was merely to bar the remedy and not to extinguish theright, no order for restitution could justly be made; fourthly, that theapplication for restitution was barred by limitation; fifthly, that the fund,though it stood in the name of two of the judgment-debtors, was not theirexclusive property and belonged, partly at least, if not entirely, to JogendraProsad Mitra, against whom the application for execution was not barred bylimitation; and sixthly, that the claim for interest was unjust and excessive.The Subordinate Judge held that the sum claimed by way of restitution wascovered by the order made by this Court, and, accordingly, directed thedecree-holders to refund the sum withdrawn by them together with interest at 12per cent per annum and costs. We are now invited by the decree holders toconsider the propriety of this order.

2. The first point for consideration is, whether the sumwithdrawn by the decree-holders is covered by the direction given by this Courtin the appeal in the objection case. We are of opinion that the direction,strictly construed, does not cover the money in controversy. The decretal orderdrawn up in this Court removes any ambiguity which may be supposed to beinvolved in the judgment; the decree directs explicitly that the order of theCourt below, dated the 5th August 1909, directing execution to proceed be andis set aside, and further orders that the respondents-decree-holders do refundto the appellants other than Jogendra Prosad Mitra, (whose appeal wasdismissed), any sums belonging to them which might have been taken away underthe said order of the Court below. The decree-holders argue that this refers interms to sums, if any, taken away by them under the order of the 5th August1909 and that the sum now in question cannot, by any stretch of language, bedeemed to have been taken away by them under that order. This is a reasonablecontention; the only proceeding then before this Court was the objection case,and it would not be right to put an extended interpretation upon our order, soas to prejudice the decree holders, without opportunity afforded to them toshow cause why restitution should not be granted in respect of sums taken awayby them in a proceeding which was, in form at least, never brought up to thisCourt. We hold accordingly that the direction previously given by this Courtdoes not conclude the matter which must, consequently, be determined on themerits.

3. The second point for consideration is, whetherrestitution may be claimed by the judgment-debtors, although they did notappeal against the payment order. The decree-holders contend in substance thatrestitution should not be granted, as the payment order has never been formallyreversed on appeal. We are of opinion that there is no substance in thistechnical objection. It is a general rule that upon the reversal of a judgment,order or decree, all connected or dependent judgments or orders fall with it,specially judgments subsequently entered and dependent thereupon; but this ruledoes not operate by implication to set aside a distinct and independentjudgment or proceeding, though it forms a part of the same litigation.Illustrations of the application of this doctrine may be found in a variety ofcases in the reports: Chicago B. & V.R. Co. v. Fosdick (1882) 106 U.S. 47 :27 Law Ed. 47 : 16 Otto. 47; Butler v. Eaton (1890) 141 U.S. 240 : 35 Law. Ed.713. Whether a judgment or order is a dependent judgment or order, that is,merely ancillary and accessory to another judgment so as to share its fate andfall to the ground along with it, must be determined from the nature and scopeof the proceedings, and may, as some of the cases in the books show, give riseto questions of considerable nicety and consequent divergence of judicialopinion: Shama Purshad Roy v. Hurro Purshad Roy 10 M.I.A. 203 : 3 W.R. (P.C.)11 : 2 Suth. P.C.J. 103 : 19 E.R. 948; Jogesh Chunder Dutt v. Kali Churn Dutt 3C. 30 : 1 Ind. Dec. (N.S.) 611. In the case before us the payment order wasmanifestly dependent upon the decision that the decree was not barred bylimitation and was consequential thereupon. This is indicated by the substanceas well as the form of the proceeding. No payment order could be made till ithad been decided that the decree was still alive and capable of execution. Thiswas expressly recognised when, on the 2nd August 1909, the application forexecution by way of attachment of the deposit was ordered to be put up after thedisposal of the objection case, as also when, on the 5th August 1909, thedecree-holders were directed to take steps as objection had been disallowedafter contest. That this was the true position was also clearly understood bythe parties, when on the 25th September 1909, the decree-holders induced theDistrict Judge to revoke the stay order on the ground that there would be nodifficulty in the way of restitution, if the appeal already preferred in theobjection case ultimately proved successful. In these circumstances, we maylegitimately hold that the payment order was in essence ancillary to thedecision in the objection case, and that the cancellation of the order in theobjection case by this Court as the Court of appeal involved by necessary implicationa cancellation of the consequential payment order. In this view, thejudgment-debtors are entitled to restitution, even though they did not formallyappeal against the payment order.

4. The third point for consideration is, whether thejudgment-debtors are entitled in justice, equity and good conscience to invokethe inherent power of the Court to grant them relief by way of restitution,when it is borne in mind that they have obtained a reversal of the order forexecution solely on the ground of limitation. The argument of thedecree-holders in substance is that inasmuch as, under Section 28 of theLimitation Act, their remedy alone has been barred though their right asexecution creditors has not been extinguished [Gajadhar Mahto v. Raghubar Gope: 12 C.W.N. 60], they should be allowed to retain the moneywhich they may have received under an erroneous order of the Court. Now, it maybe conceded that, in cases not comprehended strictly within the letter ofSection 144 of the Civil Procedure Code (which makes grant of restitutionobligatory in certain circumstances), restitution is not a matter of right butdepends upon the sound discretion of the Court and will be ordered only whenthe justice of the case calls for it; but the test of what is just must bedetermined with reference to the imperative requirements of the law applicableto the subject-matter. Section 3 of the Limitation Act requires that everyapplication made after the period prescribed therefore by the First Schedule shallbe dismissed, although limitation has not been set up as a defence. Anobligation is thus imposed upon the Court, to dismiss an application forexecution of a decree, if the application is barred by limitation: [MahomedHossein v. Purundur Mahto 11 C. 287 : 5 Ind. Dec. (N.S.) 951, Ramu Rai v. DayalSingh 16 A. 390 : A.W.N. (1894) 131 : 8 Ind. Dec. (N.S.) 254]. We are notconcerned with the policy of the Legislature as indicated by Section 3; theessential point is that the provision is mandatory, as explained by the FullBench in Balaram Gantia v. Mangta Das 6 C.L.J. 237 : 34 C. 941 : 11 C.W.N. 959.It would consequently not be right for the Court to withhold relief by way ofrestitution, when the sum has been paid out on the strength of an erroneous decisionupon a point of limitation. The principle on which restitution is grantedaccordingly applies quite as much to this case as to any other ; that principleis lucidly stated by Lord Cairns in the decision of the Judicial Committee inRodger v. Comptoir DEscompte de Paris 7 Moor. P.C. (N.S.) 314 : 3 P.C. 465 :40 L.J.P.C. 4 : 24 L.T. 111 : 19 W.R. 449 : 17 E.R. 120: " One of thefirst and highest duties of all Courts is to take care that the act of theCourt does no injury to any of the suitors, and when the expression the act ofthe Court is used, it does not mean merely the act of the Primary Court, or ofany intermediate Court of Appeal, but the act of the Court as a whole, from thelowest Court, which entertains jurisdiction over the matter upto the highestCourt which finally disposes if the case. It is the duty of the aggregate ofthose Tribunals, if I may use the expression, to take care that no act of theCourt in the course of the whole of the proceedings does an injury to thesuitors in the Court." The term "injury" is here used, not in apopular but in a legal sense, that is, an infraction of a juridical right. Theprinciple that the Court will not permit an injustice to be done by reason ofan erroneous order made by it and will, when that erroneous order has beenreversed, restore the parties to the position which they would otherwise haveoccupied, is of a fundamental character and has been applied in a variety ofinstances in England, in the United States and in this country. Reference may bemade to Eyre v. Woodfine Cro. Eliz. 278 : 78 E.R. 533; Western v. Creswick(1960) 4 Moor 161 : 8 Salk 214 : 91 E.R. 785; R. v. Leaver (1692) 2 Salk 587 :91 E.R 494; U.S. Bank v. Washington Bank (1832) 6 Pete 8 : Law. Ed. 299; Escparte Morris (1869) 9 Wallis 605 : 19 Law Ed 799 ; Northwestern Fuel Co. v.Brock (1890) 139 U.S. 216 : 35 Law Ed. 51; Beni Madho v. Pran Singh 14 Ind.Cas. 456 : 15 C.L.J. 187; Raghu Singh v. Shew Prosad Rai 17 Ind Cas. 121 [LQ/CalHC/1912/320] : 16C.L.J. 135. We are not unmindful that in Safaraddi v. Durga Prosad Sen 16 Ind.Cas. 966 : 6 C.L.J. 83 a narrower test was suggested for determination of theright of a claimant for restitution, namely, whether be could have obtained thesame relief by the institution of a suit, which, be it noticed, is notpermissible under Section 144 (2) in oases covered by Section 144(1) of theCivil Procedure Code: Mullaseri Gopala Menon v. Krisheki Kori KnathManavikraman 13 Ind. Cas. 179 [LQ/MadHC/1911/307] : 22 M.L.J. 146 : O.M.L.T. 568. It is sufficientto observe that a broader view of the principle whereon restitution is basedwas taken by the Judicial Committee in the case mentioned. It may also beobserved that the decision in Safaraddi v. Durga Prosad Singh 16 Ind. Cas. 966 [LQ/CalHC/1912/217] : 6 C.L.J. 83 is founded on a view of the relative rights of a landlord and atransferee of a portion of non-transferable occupancy holding, which hassubsequently been negatived by the Fall Bench in Dayamoyi v. Ananda Mohan Roy27 Ind. Cas. 61 [LQ/CalHC/1914/242] : 20 C.L.J. 52 : 42 C. 172 : : 18 C.W.N. 971.We also find that notwithstanding the decision in Safaraddi v. Durga ProsadSingh 16 Ind. Cas. 966 [LQ/CalHC/1912/217] : 6 C.L.J. 83 the rule formulated in Beni Madho Singh v.Pran Singh 14 Ind. Cas. 456 [LQ/CalHC/1911/528] : 15 C.L.J. 187 was followed in AmirannessaChowdhurain v. Karimannessa Chowdhurain 22 Ind. Cas. 839 : 18 C.W.N. 1299. Wehold accordingly that the judgment-debtors are not precluded from claimingrestitution merely because they have succeeded on the ground of limitation.

5. The fourth point for consideration is, whether the bar oflimitation is applicable to the application by the judgment-debtors forrestitution. It is difficult to appreciate how a question of limitation canpossibly arise in the present proceedings. The order of this Court in appealwas made on the 9th January 1914; the payment order must be deemed to have beenin full operation up to that date and was superseded only then. Thejudgment-debtors applied for restitution on the 21st May 1914. The only Articleof the Limitation Act which may possibly apply, if any rule of limitation is atall deemed applicable, is Article 181, which provides that all applications forwhich no period of limitation is provided elsewhere in the Schedule must bemade within three years from the date when the right to apply accrues [HarishChandra Shaha v. Chandra Mohan Das 28 C. 113 (30) 8 A: A.W.N. (1886) 178 : 5Ind. Dec. (N.S.) 272; Rickett v. Rameswar Malta 28 C. 109; Nand Ram v. Sita Ram8 A. 545 : A.W.N. (1886) 178 : 5 Ind. Dec. (N.S.) 272; Kurupam v. Sadasiva 10M. 66 : 3 Ind. Dec. (N.S ) 797]. We are not unmindful that a different rule ispossibly involved in the decision of this Court in Dino Math Das v. JogendraNath Bhoumick 26 Ind. Cas. 890 [LQ/CalHC/1914/376] : 19 C.W.N. 1167. In that case, thedecree-holder purchased the property of the judgment-debtor in execution of hisdecree in 1900 and took possession of the property sold in November 1900.Proceedings were thereupon instituted by the judgment-debtor to have the saleset aside. The order for cancellation of the sale was not made till the 29thJune 1907 and the property was not restored to the Judgment-debtor till June1909. On the 2nd April 1910 the representative of the, judgment-debtor appliedto the Court for an order upon the decree-holder auction-purchaser to makerestitution of the profits received by him during the time that he was inpossession. This Court held that the applicant was entitled to profits only fora period of three years antecedent to the date of the application, andaccordingly, made an order for restitution of the profits realised between the2nd April 1907 and June 1908. Reference was made to the decision in Safaraddiv. Durga 16 Ind. Cas. 966 [LQ/CalHC/1912/217] : 6 C.L.J. 83 and it was assumed that as Article 109applies the three years rule to a suit for mesne profits, the applicant wasrestricted to his remedy by way of restitution for a similar period This viewis clearly inconsistent with the long series of decisions we have mentioned,which hold that Article 181 is applicable. It is further plain that the viewtaken in Dino Math Das v. Jogendra Nath Bhoumick 26 Ind. Cas. 890 [LQ/CalHC/1914/376] : 19 C.W.N.1167 must inevitably lead to grave injustice. No application for restitution ispossible till the erroneous decree or order has been set aside or superseded.It is difficult to see on what principle time may be deemed to run against thejudgment debtor while the erroneous order is still in force; on the other hand,the judgment of Sir Barnes Peacock, C.J., in Joy Kurun Lal v. Ranee AsmudkKooer 5 W.R. 125 shows that the right of action does not accrue to thejudgment-debtor before the erroneous decree has been superseded, and time runsagainst him only from that date, even if he institutes a regular suit forrecovery of the (sic). The same view is supported by the decisions in MusammatRani Surno Moyee v. Shooshee Mokhee Burmonia 12 M.I.A. 244 : 11 W.R. (P.C.) 5 :2 B.L.R. (P.C.) 10 : 2 Suth. P.C.J. 173 : 2 Sar. P.C.J. 424 : 20 E.R. 331;Dhunput Singh v. Saraswati Misrain 19 C. 267 : 9 Ind. Dec. (N.S.) 623, RangayyaAppa Rao v. Bobba Sriramulu 27 M. 143 (P.C.) : 8 C.W.N. 162 : 14 M.L.J. 1 : 6Bom. L.R. 241 : 31 I.A. 17 : 8 Sar. P.C.J. 617 and Holloway v. Guneshwar Singh3 C.L.J. 182, which will be found reviewed in Raghu Singh v. Sheo Prosad Rai 17Ind Cas. 121 : 16 C.L.J. 135. It is interesting to note that a similar view hasbean repeatedly adopted in the Courts of the United States, where it has beenruled that when a person receives money under a decree which is afterwardsreversed on error, the Statute of Limitations commences to run in his favour onlyfrom the reversal: Bank of Washington v. Neale (1835) 4 C CC 627 ; Crocker v.Clements (1853) 23 Ala. 296; Florence v. Louisville (1903) 138 Ala. 588 : 100Am. St. Rep. 50 : 36 South 456. We feel no doubt whatever that, in the casebefore us, grave injustice would result if we were constrained to hold that theclaim for restitution was barred, because the decree-holders had managed, underan erroneous decision on a question of limitation, to take away the money ofthe judgment-debtors and to retain it for a longer term than three years, byreason of delay in the disposal of the appeal by this Court.

6. The fifth point for consideration is, whether thedecree-holders are entitled to have an enquiry as to the ownership of the fundwhich was attached in execution of their decree. We are clearly of opinion thatthe matter must be investigated. That the money stood in the name of two of thejudgment-debtors is by no means conclusive; but such enquiry will be made onlyafter the money has been brought back into Court pursuant to the directions weare about to give.

7. The sixth point for consideration, is, whetherrestitution must be made of the sum withdrawn, together with interest thereon.We are of opinion that interest must be paid by the decree-holders at the rateof 6 per cent per annum from the date of withdrawal to the date of repaymentinto Court: Rodger v. Comptoir DEscompte de Paris 7 Moor. P.C. (N.S.) 314 : 3P.C. 465 : 40 L.J.P.C. 4 : 24 L.T. 111 : 19 W.R. 449 : 17 E.R. 120; MerchantBanking Co. of London v. Maud (1875) 18 Eq. 659 : 43 L.J. Ch. 861 : 22 W.R.874; Imperial Mercantile Credit Association v. Coleman (1871) 6 Ch. App. 558 :40 L.J. Ch. 262 : 24 L.T. 290 : 19 W.R 481; Forester v. Secretary of State 4I.A. 137 : 3 C.161 : 3 Suth. P.C.J. 405 : 3 Sar. P.C.J. 717 : 1 P.R. 1877 : 1Ind. Dec (N.S.) 692. The order of the Court below, which allows interest at 12per cent, must accordingly be varied in this respect.

8. The result is that this appeal is allowed, and the orderof the Subordinate Judge discharged. The decree-holders are hereby directed tobring back into Court, within one month from this date, Rs. 3,781-9-0 togetherwith interest thereon at 6 per cent per annum from the 25th September 1909, tothe date of repayment into the Court. The sum so deposited will be invested insuch manner as the Court may direct. The fund will be deemed to have beenattached in execution of the decree of the decree-holders against JogendraProsad Mitra. The Court will then proceed to determine what portion of thefund, if any, is the property of Jogendra Prosad Mitra and the decree-holderswill be at liberty to apply such portion only in satisfaction of their decree.To prevent possible dispute we may add that should it turn out on investigationthat the fund did in whole or in part belong to Jogendra Prosad Mitra thedecree-holders will be entitled to receive therefrom not merely thejudgment-debt but also interest thereon at 6 per cent per annum from the dateof the decree till the date of realisation; credit will be allowed to thejudgment-debtors for sums previously paid or realised in satisfaction of thedecree. The Execution Case No. 93 of 1909 will stand revived, the order forsatisfaction of the decree, made on the 25th September 1909, will stand cancelled,and the enquiry directed will be held in the execution case so restored. If themoney is not brought into Court as directed, the Court below will proceed torealise the sum by execution from the decree-holders in the usual manner. Therewill be no order for costs either here or in the Court below in theseproceedings; but as the Subordinate Judge made his order on a preliminarypoint, i.e., on the ground that the matter was concluded by our order of the9th January 1914, we direct, under Section 13 of the Court Fees Act, that theamount paid as Court-fees on the memorandum of appeal be refunded to theappellants. In this view, it is unnecessary to determine whether Court-feeswere payable ad valorem on the memorandum.

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Asutosh Goswami and Ors. vs. Upendra Prosad Mitra and Ors.(22.08.1916 - CALHC)