PRIVY COUNCIL

Sri Raja Bommadavara Naganna Nuidu Bahadur Zamindar Garu

                Vs.

                Ravi Venkatapayya

                                P. C. A. No. 105 of 1921
(Lords Buckmaster, Dunedin J. Carson, Sir John Edge and Lord Salvesen JJ.)

                29.6.1923

                JUDGMENT

Lord Carson J.

1 The appellants are the Zemindars of North Vallur Estate in Kistna District, and the
respondents are the occupancy tenants of certain villages in the said estate.

2. In 1904 the Zemindar, father of the appellants, brought before the Court of the Head
Assistant Collector of the Bezwada Division, Kistna District, forty-nine summary suits
under Section 9 of the Madras Rent Recovery Act, 1865, against the respondent
raiyats to enforce acceptance by them of pattas or leases of Faslis 1314 and 1315
(1904 and 1905) which had been tendered to them. The Zemindar demanded asara or
varam rates for wet lands. The tenants on the other hand denied the claim of the
Zemindar, pleading that certain rates had been fixed in Fasli, 1292 (1882), which were
alone recover able and not the asara or varam rates (produce sharing system)
demanded by the Zemindar.

3. The suits were dismissed by the Head Assistant Collector, Bezwada Division
finding as a fact that the conversion of the asararates into cash payment in 1283 Fasli,
which was confirmed in 1292 Fasli and had been acted upon ever since, was a
permanent arrangement, and that the plaintiff (the said Zemindar) was not therefore
entitled to impose on the tenants pattas on the asara basis.

4. On appeal by the Zemindar, the District Judge affirmed the decrees of the Collector
in respect of the finding of fact relative to the character of the arrangement of 1283
Fasli, and upheld the orders dismissing the suits. On further appeal to the High Court
of Madras, the High Court set aside the orders of the lower Courts, holding that "the
pattas tendered by the plaintiff were proper pattag, and that the defendants must
accept them."

5. The tenants, thereupon, appealed from the judgment of the High Court to His
Majesty in Council, and on the 18th June, 1914, the Lords of the Judicial Committee
of the Privy Council set aside the judgments and decrees of the High Court on the
ground that as there were concur rent findings of fact in the Courts below, an appeal to
the High Court was precluded by the Code of Civil Procedure, Sections 584 and 585.
Their Lordships, how ever, ordered that the cases should be sent back to be remitted to
the Court of the Collector for the drawing up of proper decrees and dealing with any
other questions that might be outstanding in these actions between the parties.

6. The case before this Board is reported in Ravi Veeraraghavulu v. Bomma Devara
Venkata,1where the facts outlined above are more fully stated. Meanwhile during the
pendency of the said appeal to His Majesty in Council the Zemin dar instituted similar
suits for arrears of rent in respect of 1316 Fasli to 1322 Fasli under Section 77 of
Madras Act I of 1908, and decrees were made against the tenants, all of which, except
those of 1322 Fasli were realised in execution. No application was made for stay of
trial of any of the suits pending the disposal of the appeal to this Board. The matters
for determination in the present consolidated decrees raise questions as to the effect, if
any, of the decision of this Board of the 18th June, 1914, on the subsequent judgments
and execution thereunder.

7. On the one hand, on the 2nd October, 1914, the appellants brought the present suits
against the respondents, claiming dry cash cist (rent) for dry lands and claiming
ambaram. (rent in kind, or its equivalent in money) for wet lands, whilst the tenants
(respondents) contended that the Zemindar was only entitled to dry cash rate on all the
lands, and that the order of the Privy Council had so decided.

8. On the other hand, the tenants (respondents) instituted the present suits against the
father of the appellants, who now represent him, for a refund of amounts paid by them
in excess of dry rates for the rents of 1314, 1316-1321 Fasli, claiming that the said
decision of Privy Council in suits for 1915 Fasli was to the effect that the Zemindar
was entitled only to dry rates as fixed in 1292 Fasli, and that not only the decisions of
the High Court but also those of the Collector and the District Judge, which were
given subsequently on the strength of that decision, were void and ultra vires.

9. In the Zemindar's suits the Deputy Collector of Bezwada decreed the suits, fixing
the rent at the rate of Rs. 6 per acre for wet land and rates varying from Rs. 3 to Rs. 2-
8-6 for dry lands. On appeal, however, the District Judge of Kistna held that the Privy
Council judgments operated as res judicata with regard to the claim for rent for future
years, and he decreed a uniform rent of Rs. 2-12 odd per acre.

10. In the tenants' (respondents') actions for recovery of the excess of rent paid during
the pendency of the appeal the Subordinate Judge of Bezwada on the 29th September,
1916, found in favor of the respondents (tenants).

11. The decisions in both sets of cases were challenged, and appeals taken to the High
Court of Madras, and both sets of appeal were heard together.

12. On the 7th March, 1919, the High Court gave judgment. With regard to the suits
instituted by the respondents for the refund of rent in consequence of the decision of
the Judicial Committee, the Court held " that the tenants (respondents), on reversal of
the decree of the High Court by the Privy Council, became entitled to recover the rent
which they had overpaid in the intermediate suits by reason of this decision," and
remanded the suits for disposal according to law.

13. The learned Judges of the High Court based their decision mainly, if not
altogether, on the authority of a case decided by this Board, viz., Shama Purshad Boy
Chowdury v. Hurro Purshad Boy Chowdury2as interpreted by the majority of the Full
Bench in Jogesh Chunder Dutt v. Kali Churn Dutt 3to be referred to later.

14. Their Lordships cannot agree with this view, nor do they consi der that the case
cited in evidence is an authority for the conclusions come to. It is clear and settled law,
as stated in the case referred to at p. 211 of 10 M. I. A, that " money recovered under a
decree or judgment cannot be recovered back in a fresh suit or action whilst the decree
or judgment under which it was recovered re mains in force ; but this rule of law rests,
as their Lordships apprehend, upon this ground, that the original decree or judgment
must be taken to be subsisting and valid until it has been reversed or supersede by
some ulterior proceeding. If it has been reversed or superseded the money recovered
under it ought certainly to be refunded and as their Lordships conceive is recoverable
either by summary process or by a new suit or action. The true question, therefore, in
such cases is, whether the decree or judgment under which the money was originally
recovered has been reversed or superseded?"

15. Their Lordships entirely agree with this statement of the law and, applying the test
indicated, their Lordships can find no reason for holding that the decrees or judgments
executed against the respondents were either reversed or superseded by the judgment
of this Board on the 18th June, 1914. By that judgment their Lordships did not pro
pose to deal with anything but the actual subject-matter of the cases before them. In
fact, the only point decided was that the High Court, under the circumstances, had no
power to reverse the decisions of the Subordinate Courts.

16. The facts in the case of Shama Purshad, were, in their Lord ships' opinion, entirely
different. In that case the Judicial committee, in applying the test already quoted, viz.,
" whether the decree or judgment under which the money was originally recovered
had been reversed or superseded ", were of opinion that it was plainly intended by the
Order in Council in that case that all the rights and liabilities of the parties should be
dealt with under it, and that it would be in contravention of the order to permit the
decrees obtained pending the appeal on which it was made to interfere with this
purpose.

17. It was also pointed out that the plaint in which the original decree was recovered,
described the interest recovered by the decrees under appeal as part of the same cause
of suit holding, there fore, that such decrees were mere subordinate and dependent
decrees, which could no longer be held to have remained in force when the decree on
which they were dependent had been reversed. It is no doubt true, as stated in the
judgment of the High Court, that in the case of Jogesh Chunder Dutt v. Kali Churn
Dutt (Supra) the decision in 10 M. I. A. was extended by a majority to apply to a case
like the present, where it was sought to recover the difference between the enhanced
rent recovered and the fixed rent which the tenant was bound to pay. But for the
reasons already stated their Lordships can not agree with the interpretation of the case
in 10 M. I. A. (2) applied by the majority of the Court, and prefer the reasoning and
conclusions set forth in the judgment of Grarth, C. J., which were concurred in by
Jackson, J.

18. Their Lordships are therefore of opinion that in the tenants' (respondents') actions
for the recovery of the excess of rent the appeal should be allowed and the actions
should be dismissed. In the suits by the appellants for the rent of a Fasli subsequent to
the decision of the Privy Council their Lordships see no necessity for referring the
case back to the Court of the Honorary Suits Deputy Collector of Bezwada as has been
ordered by the High Court. That Court, by decrees of the 3rd December, 1915, found
that a suitable rate is Rs. 6 per acre, and the appellants have not before the Board
questioned the amount of such decrees. Their Lordships therefore think these decrees
should be affirmed.
19. Their Lordships will, therefore, humbly advise His Majesty that these appeals
should be allowed but without costs, either in the Courts before whom the suits were
litigated or before this Board.

Appeals allowed.

Cases Referred.

1.(1914) 37 Mad 443 : 41 IA 258 : 27 MLJ 451 : 16 MLT 262 : (1914) MWN 695 :
ILW 779 : 20 CLJ 375 : 19 CWN 97 : 25 IC 305 : 16 Bom LR 853 (PC)

2. (1863-66) 10 MIA 203 : 3 WR 11 : 2 Suther 103 (PC)

3. (1877-78) 3 Cal 30 : 1 CLR 5 (FB)