(Prayer: Petition (disposed of on 30-8-1957) under S. 115 of Act V of 1908 praying the High Court to revise the order of the Sub Court, Madurai, dated 10-7-1957 in E.A. No. 389 of 1957 in E.P. No. 403 of 1956 in O.S. No. 93 of 1950.)

This is a petition for revising and setting aside the order of the Subordinate Judge of Madurai, dismissing E.A. No. 389 of 1957 in E.P. No. 403 of 1956 in O.S. No. 93 of 1950, on his file. That was a petition put in by these petitioners, under S. 151, C.P.C., alone, for directing the respondent, Ramalinga Naicker, to give sufficient immoveable property security before drawing out the amount of Rs. 2000 deposited by them into Court as a first installment by way of restitution of the amount of some Rs. 7989-54 in all due to the respondent by virtue of the first Court decree against him in O.S. No. 93 of 1950, Sub Court, Madurai, having been set aside by this Court in appeal (A.S. No. 480 of 1952). The petitioners case was that they had filed L.P.A. No. 41 of 1956 in this Court against the judgment and decree in A.S. No. 480 of 1952, and that, though the stay application in that L.P.A., has been dismissed by a Bench of this Court, to which I too was a party, the respondent, who was alleged to be a man of no means should be made to give immoveable property security for the Rs. 2000 put into Court before he drew it out. It is represented to me by Mr. T.S. Vaidyanatha Ayyar that the balance of Rs. 5989.54 has also been since deposited into the trial Court under an order of Ramaswami, J., dated 29th July 1957 in a C.M.P. in this C.R.P. as a condition precedent to stay of execution.

I have perused the records and heard the learned Counsel for both sides. Mr. Vaidyanatha Ayyar strongly relies on the wording of O. 41, R. 6(1) C.P.C., and says that the Court shall order security as a condition precedent to the withdrawal of even monies in restitution, as the word restitution is found in that rule. Mr. Ramachandra Ayyar, learned. Counsel for the respondent, pointed out that the petition itself was filed only under S. 15

1. C.P.C., and not under O. 41, R. 6, C.P.C. I do not consider this an impediment in the way of Mr. Vaidyanatha Ayyars relying on O. 41, R. 6, C.P.C., if it will help him. In modern times, the mere fact that a section of law rightly applicable t o a matter is not quoted, and another section of law not so clearly applicable to the matter is quoted, will not bar the party from relying on the right section of law, if it is not totally irrelevant, or unconnected with the previous section. After all, it is the Courts which lay down the law and are supposed to be the reservoirs of law, and not parties who file petitions. But the difficulty facing Mr. Vaidyanatha Ayyar is that O. 41, R. 6, C.P.C., will not help him in the circumstances of this case, which is a case of restitution under S. 144, C.P.C., S. 144, C.P.C., says that where and in so far as a decree is varied or reversed, the Court of the first instance shall , on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made, as will, so far as may be place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed, and that for this purpose, the Court may make any orders, including orders for the refund of costs end for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. It need hardly be pointed out that there is a tremendous difference between drawing out the money of another party put into Court for averting a sale in execution of a decree passed in ones favour, and ones own money put back into Court by the other party after the wrong decree in his favour has been reversed in appeal. The word restitution in O. 41, R. 6, C.P.C., relied on by Mr. Vaidyanatha Ayyar occurring in the clause require security to be taken for the restitution of any property which may be or has been taken in execution of the decree has no reference at all to the restitution proper in S. 144, C.P.C. It means that when a party in whose favour a decree has been passed wants to take the money deposited by the other party to avert a sale in execution of that decree, when an appeal is pending, suitable terms may be imposed on such withdrawal. The thing is quite different when a party is only trying, as in this case, to draw out ones own amounts put in by the to her side, by way of restitution. Mr. Vaidyanatha Aiyar urged that the money cannot be termed to be respondents money, as under the first Courts decree, which has been set aside, the money was the petitioners. The argument is unconvincing. No decree of a trial Court has any existence in law when it has been set aside in appeal, any more than a conviction of a trial Court when it has been set aside in appeal and an acquittal has been recorded by the appellate Court. When only restitution is prayed for, in other words, it is only a question of getting back ones own moneys put into Court because of a wrong decree, the question of the solvency of the person who wanted to draw it out if not very relevant. He was the person who put the money into Court and he had every right to draw it out when the degree which compelled him to put into Court has been set aside and restitution ordered and the money put back into Court by the party wrongly drawing it out. Simply because an L.P.A. has been filed by the petitioners, and there is said to be a chance of their succeeding in that appeal, it is no reason to deprive the respondent of his right to take his money in the meanwhile. It is not proved that the respondent is such a down and out pauper, as was stated by the petitioners, or that he will sell away the rest of his properties. But as stated above, even if he is a pauper, he will be entitled to draw back his own moneys, by way of restitution, without security. There is no decree of any kind against him now, and no attachment or other order binding the money. So under the law he will be entitled to draw it out without security. The rulings relied on by Mr. Vaidyanatha Aiyar, namely, Dhirendranath v. Sailaj Kumar A.I.R. 1940 Cal. 582., and Rukmani v. Subramania I.L.R. 1940 Mad. 420 [LQ/MadHC/1939/395] =50 L.W. 645., have no relevancy to the facts of this case and will not apply here. Each case has to be decided on its own merits.

Mr. Vaidyanatha Aiyar lastly urged that the petitioners are prepared to pay interest to the respondent for the period the money lies in Court on his failure to furnish security. But that will mean a forced loan of the money by the respondent to the petitioners, which no Court in this country has yet the power to order. Nor can I see why a man, who need not give any security for drawing out his own monies, should be forced to lent the monies out to his opponent, who got a wrong decree, subsequently set aside in appeal, though there is an L.P.A. pending. It must be noticed also that in the L.P.A., stay was refused by the Bench to the petitioners. It is not as if any valuable properties of the petitioners are awaiting sale now, and valuable properties may be sold for a song. The entire money due to the respondent by way of restitution has been deposited into Court. So the only question now is whether the respondent ought to furnish security for drawing out his own monies, and that question must unhesitatingly be answered, in the circumstances, in the negative and in favour of the respondent and against the petitioners.

This C.R.P. deserves to be and is hereby dismissed with costs.