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The suit was decided against him by the Courts of this country, KALI CHURN and was taken on appeal to the Privy Council, where the judgment was given, which has been the subject of so much discussion, and which is insisted upon here by the plaintiff as a conclusive CHUNDER precedent in his favour.

DUTT AND
OTHERS

v.

JOGESH

DUTT.

Their Lordships in that case distinctly affirmed the well-known Judgment. principle of law, that in this country, as in England, money reGARTH, C.J. Covered under a decree or judgment cannot be recovered back in a fresh suit, so long as the decree or judgment, under which it was recovered, remains in force. They go on to say, that this rule of law rests upon the ground, that the decree or judgment must be considered as subsisting, until it has been reversed or superseded by some ulterior proceeding. But when it has been so reversed or superseded, the money paid under it may be recovered back.

Their Lordships then go on to say, that the decrees in this country, under which the sum of Rs. 11,127-15-3 was recovered were in fact superseded by the order of Her Majesty in Council in 1849. That order, they considered, extended not only to the claim of the plaintiff in the particular suit in which it was made, but to the adjustment of the rights and interests of the parties in the entire subject-matter of that suit. The order had declared Doorga Persad to be a trustee for Tara Persad of the whole sixanna share of the bond and interest; and it had directed the Sudder Dewany Adawlut to adjust and enforce the rights and liabilities of the parties in accordance with the directions of the Privy Council. If this order had been obeyed by the Sudder Dewany Adawlut, as their Lordships say it ought to have been, the interest in question, Rs. 11,127-15-3, would have been refunded to Doorga Persad by the order of the Sudder Dewany Adawlut under and by force of their Lordship's previous decree; because that decree had superseded and annulled what their Lordships call the "dependent and subordinate decrees," which had been obtained for the interest.

But as the Sudder Dewany Adawlut failed to take any steps to carry out the directions of the Privy Council, their Lordships considered that the Rs. 11,127 were recoverable by a fresh suit, and they accordingly reversed the decree of the Sudder Court, and adjudged to the plaintiff that amount, with interest at 12 per cent.

Now two things appear to me clear from this judgment—

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1st. That the Privy Council had no intention of questioning KALI CHURN

the authority of the rule

laid down in Marriott vs. Hampton

DUTT AND
OTHERS

v.

JOGESH CHUNDER DUTT.

Judgment.

2 Sm. L.C., 6 Ed., p. 375. On the contrary, they distinctly affirm it; because they say that, as long as the decree and judgment under which money has been obtained remains in force, no money paid under it can be recovered back; and 2nd. That their Lordships' judgment is based entirely GARTH, C.J. upon this principle, viz., that the effect of the order of Her Majesty in Council made in 1849 was not only to reverse the judgment in the case which was then sub judice, but also to supersede and annul ipso facto the decrees which had been made in another

suit.

I have searched in vain to find an y other instance in which the decree of an Appellate Court in one suit has been held to have the legal effect of annulling or altering ipso facto a decree made by a subordinate Court in another suit; but of course we are bound here to treat the decision of the Privy Council as binding upon us as far as it goes, and to deduce as carefully as we can from the language of the judgment, what was the ground upon which their Lordships considered that the order made in the first suit in 1849 had the effect of superseding the decree for the Rs. 11,127 interest.

It appears to me that the only explanation of the apparent difficulty is this. That in the decree of 1849, their Lordships assumed to deal, and were in fact dealing, not only with the actual claim made in the suit, but with the status and rights of the parties with reference to the whole subject-matter of it. They declare that Doorga Persad was a trustee of Tara Persad upon certain terms and conditions; and they directed the Court here to adjust the rights and liabilities of the parties in accordance with that declaration; and as the interest of the bond (Rs. 11,127) formed part of the fund, in respect of which that trust had been declared, their Lordships considered that, although a decree had been obtained in the Courts here for the interest, that decree was as much dealt with and superseded by their judgment, as the decrees which had been made with reference to the remainder of the bond debt.

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Upon this ground, and upon this ground only, it appears to me KALI CHURN their Lordships' judgment proceeded; and I do not understand that they intended to overrule the principle laid down in Marriott vs. Hampton, or to prescribe a different rule of equity in this CHUNDER Country, from that whieh obtains in England.

DUTT AND
OTHERS

v.

JOGESH

DUTT.

It does not appear to me that their decision can be considered Judgment. as governing the present case, unless we can find that the decree GARTH, C.J. made by their Lordships on the 25th of March 1873, reversing

the first judgment for the enhanced rent, had the legal effect per se of superseding or modifying the subsequent decree for enhanced rent, obtained between the year 1864 and the 25th of November 1875.

Now, on looking at the language of their Lordships in that decree, I cannot discover, that they dealt, or intended to deal, with anything else, than the actual subject-matter of the suit upon which they were engaged.

Their judgment involves no change in the mutual relation of the parties. Their Lordships give no directions to the Courts of this country as to adjusting the parties' rights or liabilities. They simply decide the question whether or no the plaintiff was or was not entitled to enhance the plaintiffs' rent; so that, unless we are to hold that in every case the decree of an Appellate Court has the effect of superseding or modifying every other decree inconsistent with it, which may have been made between the same parties in any other suit brought in a Subordinate Court upon the same subject-matter, I do not see how we can consistently say that the decree of the Privy Council of the 25th March 1873 has superseded or modified the subsequent decrees for enhanced rent obtained by the present defendant.

It will be observed that in the case of Doorga Persad against Tara Persad, the decree which was superseded by the judgment of the Privy Council was for interest, which that judgment had declared not to be payable, and which their Lordships had in fact directed the Sudder Dewany Adawlut to restore to Doorga Persad, so that the effect of Her Majesty's order, according to the view which their Lordships took of it, was to supersede the decree for interest altogether.

But here the case is very different. Their Lordships here have given no direction, which could have the effect of superseding

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DUTT AND

or altering any other decrees; and it is not contended that these subsequent decrees are absolutely superseded. It is said, that KALI CHURN they are only modified, or in other words, that the Privy Council's judgment has had the effect, per se, of altering a judgment for one sum into a judgment for another sum.

OTHERS

v.

JOGESH CHUNDER Dutr.

Judgment.

But if that is so, and if this principle is to be consistently carried out, the amount of costs ought to be altered also. This doctrine is certainly a novel one; and, if we are to apply GARTH, C.J. it in all cases3-as of course we must (if we are to act consistently)—it will be attended with some strange consequences.

The rule, if it is to be applied in the case of one of the parties, must be applied also in the case of the other.

Thus, if in a suit like the present, a claim can be made by the tenant to recover sums which he has overpaid to the landlord, the landlord ought to have a corresponding remedy if the state of things are reversed.

Suppose that in the original suit the Courts here had decided that the landlord was not entitled to the enhanced rent, but the Privy Council overruled that judgment, and decided that he was so entitled; and suppose, also, that, pending the appeal to the Privy Council, the landlord had brought several suits for the enhanced rent, but in each had only recovered the original rent, if the above principle is to be carried out, the landlord would be entitled in a fresh suit to recover the enhanced rent which he had failed to recover in his subsequent suits here, and to which the Privy Council had declared him entitled.

So again, if the rule is to apply to cases of landlord and tenant, it must apply to all other cases where the relative rights of parties are determined in one suit, and claims founded on those rights are enforced in subsequent suits. (The case of Shama Persad vs. Tara Persad was not a case between landlord and tenant.)

Thus, for instance, A. sued B. to recover the value of coal, which he claims as having been taken out of his coal-mine. The question depends upon whether B. has a right to take the coal from a particular area; and A. obtains a decree for damages upon the ground that B. has no such right. B. appeals to the High Court; meanwhile B., continuing to take the coal, A. brings another suit

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against him for damages, and recovers. The High Court reverses KALI CHURN the original decree; B may then sue for the damages, which he has paid in the second action, as money had and received to his

DUTT AND

OTHERS

v.

JOGESH CHUNDER

DUTT.

use.

But if this is to be law, the converse proposition ought to hold good also. That is to say, suppose the decree in the first suit to Judgment. be in favor of B., on the ground that B. had a right to get the GARTH, CJ, coal, and A. appealed; and pending the appeal, A. brought

another suit against B., and failed upon the same ground. The Court of Appeal reverses the first decree. Surely A. ought to be entitled to recover by a fresh suit the value of the coal which was denied him in the second action.

It would be a palpable injustice to allow one party to avail himself of the judgment of the Appellate Court, and not the other.

In the cases above-mentioned, the question as to the sum to be recovered, would be tolerably simple. But suppose a case of this kind :-A. sues B. for damages for building a house upon two pieces of land which he claims-Blackacre and Whiteacre. The question is, whether B. has any right to do this. The Court decides that he has not, and awards damages to A. B. appeals. Meanwhile, the building still going on, A. brings a fresh suit for damages, which he has a right to do for the continuing trespass, and recovers further damages. The Court of Appeal reverses the the first judgment in part, upon the ground that B. had a right to build on Blackacre, but not on Whiteacre; and reduces the damages accordingly. Can B. sue to recover part of the damages incurred in the second action? and if so, what part? And how is the amount to be ascertained? In other words, to what extent, if at all, has the judgment of the Appellate Court superseded or altered the decree of the Subordinate Court?

Then again it must be borne in mind that, if a decree of one Appellate Court is to have the effect of reversing or altering decrees in other suits, the same effect must be given to a decree of any other Appellate Court under similar circumstances. The decree of the Privy Council, as an Appellate Court, cannot have a different effect from that of the High Court, or the District Court, or the Court of the Subordinate Judge, in its Appellate capacity.