JUDGMENT
Seetharama Reddy, J.
1. By a common order, these three revision petitions could be disposed of, as they are inter-related involving a common point.
2. These three revision petitions arise under the following circumstances : Bank of India who is the revisionist in all the three revision petitions filed the suit, O.S.No.12 of 1975, against Vijay Transport, Madras and others, for recovery of a sum of Rs. 18,14,817.97 on the file of the Sub-Court, Eluru. Vijay Transport (defendant No.1), Sunkavalli Rajalakshmi (defendant No.3), Sunkavalli Venkatakrishna Parvatalu (defendant No.4) and Sunkavallli Annapurnamma (defendant No.14) put in a counter- claim. The Sub-Court, Eluru, decreed both the suits as well as the counter-claim. The petitioner, Bank of India, preferred an appeal to this court in A.S. No.858 of 1976 against the said decrees. In appeal stay was granted on condition of deposit of a sum of Rs.16 lakhs by the petitioner -bank which was in turn enabled to be withdrawn by the respondent-defendants on furnishing a bank gurantee. The said amount was withdrawn by the first defendant for which, at first, the United Commercial Bank gave security which was later replaced, on cancellation, by the Karnataka Bank. The said appeal suit, however, was allowed by judgment and decree dated September 20, 1983, for Rs.8,14,324.92 resulting in the dismissal of the counter-claim.
3. It is, thereafter that the following three E.As. were filed by the petitioner-bank before the Sub-Court, Eluru. E.A.No.363 of 1984 was filed seeking a direction to the Karnataka Bank of restitution of Rs.16 lakhs by depositing the same in the court. E.A.No.364 of 1984 was filed seeking a direction for restitution of interest. Thereafter, the Sub-Court, Eluru, made an order dated August 1, 1985, in E.A.No.363 of 1984 directing the Karnataka Bank, respondent No.6 herein, to deposit Rs.16 lakhs in the court which sum was deposited. Soon thereafter, applications were filed by the respondent-defendants to stay all the proceedings and not to make payment to the petitioner-bank while, at the same time, seeking review of the order made in E.A.363 of 1984. However, the case was posted on August 16, 1985, for final orders. But then, on the filing of O.P.No.215 of 1985 by the respondent-defendants before the District Court, Eluru, all the proceedings were stayed. After the dismissal of the O.P.., the respondent-defendants preferred a transfer civil miscellaneous petition in the High Court under section 24, Civil Procedure Code, for transferring all the applications including the records in O.S.No.12 of 1975 from the file of the Sub-Court, Eluru, to the file of the Sub-Court, Tadepalligudem, which was ordered. The Sub-Court, Tadepalligudem, eventually allowed the review petition on December 30, 1985, holding that the Karnataka Bank, respondent No.6, becomes liable only on the failure of the second respondent for herself and on behalf of the first respondent to duly discharge her liability. Consequently, E.A. Nos.363 of 1984, 196 of 1985 (E.A.No.364 of 1984 on the file of the Eluru Sub-Court) and 197 of 1985 (E.A.No.365 of 1984 on the file of the Eluru Sub-Court) were dismissed. However, the Sub-Court, Tadepalligudem, allowed the application for restitution of costs which were withdrawn by the first defendant. It also ordered the application for payment of costs with interest at 6 per cent. from the date of withdrawal till the date of realisation. Hence, the following three revision petitions by the petitioner-bank:
(1)C.R.P.No.1 of 1986 against the order made on December 30,1985, dismissing E.A.No.363 of 1984 by the Sub-Court, Tadepalligudem.
(2) C.R.P. No.2 of 1986 against the order made on December 30, 1985, dismissing E.A.No.196 of 1985 (E.A.No. 364 of 1984 on the file of the Sub-Court, Eluru), sought for restitution of Rs.16 lakhs with interest.
(3) C.R.P.No.3 of 1986 preferred against the order dated December 30, 1985, allowed E.A.No.207 of 1985 (E.A.No.469 of 1985 on the file of the Sub-Court, Eluru) and reviewing the order made in E.A.No.363 of 1984.
4. The crucial question, therefore, is whether, in the circumstances of the case, restitution of the amount of Rs.16 lakhs deposited by the petitioner-bank pursuant to the conditional order made by this court can be ordered?
5. The relevant features of the guarantee bond executed by the Karnataka Bank at the time of withdrawal of Rs. 16 lakhs deposited by the petitioner-bank, may be set out.
“……(1) Mrs. Sunkavlly Rajalakshmi, …. the third defendant in O. S. No. 12 of 1975 …….(ii) On behalf of the first defendant ……(iii) The karanataka Bank Ltd.,……. who shall hereinafter be called the guarantor are jointly and severally bound unto Hon’ble Sri. Y. Tirumurty, the Subordinate Judge, Eluru, in the sum of Rs. 16,00,000 …… to be paid unto the said …….. Subordinate Judge, ….. his successors-in-office- in-office or assigns to whom payments to be well and truly made …… the third defendant ….. for me and on behalf of …… first defendant …. the Karnataka Bank Ltd …… the guarantor herein do hereby bind ourselves for the whole and each and every one of our successors, administrators and assigns unto the Hon’ble Sri. Y. Tirumurthy, Subordinate Judge, Eluru …….
6. WHEREAS, by an order of the Hon’ble High Court of Judicature at Hyderabad dated December 28, 1976, in J. P. A. Nos. 178 and 185 of 1976. the first defendant in O. S. No. 12 of 1975 …… is permitted to withdraw the deposited amount on furnishing sufficient security or bank guarantee…….
7. And now that the Karanataka Bank Ltd., who have hereby agreed to give the said guarantee and make themselves liable for the restitution of Rs. 16,00,000 ….. and thus the guarantor undertakes to pay the aforesaid amount which may be ordered to be paid by way of restitution to the plaintiff in case the plaintiff succeeds in the appeal …… as though the guarantor it the party to the proceedings and the plaintiff is entitled to recover an amount of Rs. 16,00,000 ….. as if the guarantor is the person who with drew the amount and realise the amount in the execution of the decree which may be passed without recourse to a separate suit.
8. AND, WHEREAS, the guarantor, the Karnataka Bank Ltd. has agreed to give the guarantee for a sum of Rs. 16,00,000 …… by these presents.
9. AND Now the condition of the above bond is such that the said Mrs. Sunkavally Rajalakshmi, the third defendant …. and the sole surviving partner of the said firm, Vijay Transport, the first defendant ….. fails to duly discharge her duty for herself and on behalf of the first defendant ….. then the guarantor is liable for the restitution fo the amount of Rs. 16,00,000 only and the guarantor undertakes to pay amount aforesaid which may be ordered to be paid by way of restitution to the plaintiff in case the plaintiff succeeds in the appeal before the High Court …… as though the guarantor is a party to the proceedings and the plaintiff is entitled to recover an amount of Rs. 16,00,000 as if the guarantor is the person who with drew the amount and realise the amount in the execution of the decree which may be passed without recourse to a separate suit…….
10. AND in case Mrs. Sunkavally Rajalakshmi, the third defendant…. pays the above referred amount, this guarantee bond shall become discharged and be of no effect. Otherwise, this guarantee bond shall remain in full force……
11. Now to the case law cited for and against. A Division Bench of this court in Y. Bapanna v. D. China
” Section 145 applies to personal liability and a security bond executed by a judgment-debtor in favour of the court cannot be enforced under it.
But such a bond can be enforced in the execution proceedings under section 151, and no separate suit is necessary. ”
12. For the aforesaid two propositions, this court followed the earlier decision in P. Babulal v. Hyderabad Municipal Corporation, and Subbrao v. Venkataraju, .
13. In Rohani Ramandhwaj v. Thakur Har Prasad Singh Ramandhwaj Pradsd Singh, , the security bond that was executed read as under (p. 190) :
” If the decree passed by the court of first instance is amended or set asid by the appellate court, the plaintiff-respondent shall re-covey the property, whereof he shall obtained possession under the security bond in the same condition as it is at present and shall pay, according to the orders of the appellate court, such amount of mesne profits in respect of the property in dispute as may be found due by the plaintiff decree-holder when the possession of the property is delivered. If the plaintiff fails to comply with the orders of the appellate court, the amount may be recovered by auction sale of the property hypothecated under this deed which is specified below. If the sale proceeds be inadequate, my person and other property shall remain liable to the extent of the amount of security and I, the executant, in person and my heirs and representatives shall remain liable for payment of the same. ”
14. Dealing with the above, the court held (headnote) :
” When a decree is varied or reserved in circumstances giving rise to a right by way of restitution, the right arises automatically and is claimable under section 144 before the trial court. ”
15. Further held (at p. 191) :
” Upon examination of the matter, it appears to their Lordships that the courts in India were right in holding that the case is not within section 145 if only because the section applies only to the personal liability of the surety. But the appellant’s claim is nevertheless one which cannot be made by a suit but can only be made application to the trial court under section 144 of the Code, and under its inherent powers to enforce the security. ” The relevant features of the guarantee bond executed by the Karnataka Bank at the time of withdrawal of Rs. 16 lakhs deposited by the petitioner-bank, may be set out.
“……(1) Mrs. Sunkavlly Rajalakshmi, …. the third defendant in O. S. No. 12 of 1975 …….(ii) On behalf of the first defendant ……(iii) The karanataka Bank Ltd.,……. who shall hereinafter be called the guarantor are jointly and severally bound unto Hon’ble Sri. Y. Tirumurty, the Subordinate Judge, Eluru, in the sum of Rs. 16,00,000 …… to be paid unto the said …….. Subordinate Judge, ….. his successors-in-office or assigns to whom payments to be well and truly made …… the third defendant ….. for me and on behalf of …… first defendant …. the Karnataka Bank Ltd …… the guarantor herein do hereby bind ourselves for the whole and each and every one of our successors, administrators and assigns unto the Hon’ble Sri. Y. Tirumurthy, Subordinate Judge, Eluru …….
16. WHEREAS, by an order of the Hon’ble High Court of Judicature at Hyderabad dated December 28, 1976, in J. P. A. Nos. 178 and 185 of 1976. the first defendant in O. S. No. 12 of 1975 …… is permitted to withdraw the deposited amount on furnishing sufficient security or bank guarantee…….
17. And now that the Karanataka Bank Ltd., who have hereby agreed to give the said guarantee and make themselves liable for the restitution of Rs. 16,00,000 ….. and thus the guarantor undertakes to pay the aforesaid amount which may be ordered to be paid by way of restitution to the plaintiff in case the plaintiff succeeds in the appeal …… as though the guarantor it the party to the proceedings and the plaintiff is entitled to recover an amount of Rs. 16,00,000 ….. as if the guarantor is the person who with drew the amount and realise the amount in the execution of the decree which may be passed without recourse to a separate suit.
18. AND, WHEREAS, the guarantor, the Karnataka Bank Ltd. has agreed to give the guarantee for a sum of Rs. 16,00,000 …… by these presents.
19. Now the condition of the above bond is such that the said Mrs. Sunkavally Rajalakshmi, the third defendant …. and the sole surviving partner of the said firm, Vijay Transport, the first defendant ….. fails to duly discharge her duty for herself and on behalf of the first defendant ….. then the guarantor is liable for the restitution fo the amount of Rs. 16,00,000 only and the guarantor undertakes to pay amount aforesaid which may be ordered to be paid by way of restitution to the plaintiff in case the plaintiff succeeds in the appeal before the High Court …… as though the guarantor is a party to the proceedings and the plaintiff is entitled to recover an amount of Rs. 16,00,000 as if the guarantor is the person who with drew the amount and realise the amount in the execution of the decree which may be passed without recourse to a separate suit…….
20. AND in case Mrs. Sunkavally Rajalakshmi, the third defendant…. pays the above referred amount, this guarantee bond shall become discharged and be of no effect. Otherwise, this guarantee bond shall remain in full force……
21. Now to the case law cited for and against. A Division Bench of this court in Y. Bapanna v. D. China
” Section 145 applies to personal liability and a security bond executed by a judgment-debtor in favour of the court cannot be enforced under it.
But such a bond can be enforced in the execution proceedings under section 151, and no separate suit is necessary. ”
22. For the aforesaid two propositions, this court followed the earlier decision in P. Babulal v. Hyderabad Municipal Corporation, and Subbrao v. Venkataraju, .
23. In Rohani Ramandhwaj v. Thakur Har Prasad Singh Ramandhwaj Pradsd Singh, , the security bond that was executed read as under (p. 190) :
” If the decree passed by the court of first instance is amended or set asid by the appellate court, the plaintiff-respondent shall re-covey the property, whereof he shall obtained possession under the security bond in the same condition as it is at present and shall pay, according to the orders of the appellate court, such amount of mesne profits in respect of the property in dispute as may be found due by the plaintiff decree-holder when the possession of the property is delivered. If the plaintiff fails to comply with the orders of the appellate court, the amount may be recovered by auction sale of the property hypothecated under this deed which is specified below. If the sale proceeds be inadequate, my person and other property shall remain liable to the extent of the amount of security and I, the executant, in person and my heirs and representatives shall remain liable for payment of the same. ”
24. Dealing with the above, the court held (headnote) :
” When a decree is varied or reserved in circumstances giving rise to a right by way of restitution, the right arises automatically and is claimable under section 144 before the trial court. ”
25. Further held (at p. 191) :
” Upon examination of the matter, it appears to their Lordships that the courts in India were right in holding that the case is not within section 145 if only because the section applies only to the personal liability of the surety. But the appellant’s claim is nevertheless one which cannot be made by a suit but can only be made application to the trial court under section 144 of the Code, and under its inherent powers to enforce the security.”
26. In Sankunni Variar v. Vasudevan Nambudripad, AIR 1926 Mad 1005 a Division Bench of the Madras High Court held (headnote);
27. “The liability under section 145 attaches only in the case of a person who is ‘surety’ for the payment of any money under an order of the court and not a surety liable to pay owing to default. But, where the surety undertakes to produce certain property of the judgment-debtor attached in execution of a decree, or in default to be liable for its value, the security bond can be enforced by way of execution, apart from the provisions of section 145. Although the case does not come within the terms of section 145, the court has inherent power to enforce its bond without recourse to a suit.”
27. A Division Bench of the Hyderabad High Court in Madiraj Chiranjivrao v. Venkateshwarrao, AIR 1955 Hyd 261, held (headnote):
“It cannot be laid down that, against a surety who executed a bond in the name of the court, or of the decree-holder, the contract is unenforceable on that account, either in execution proceedings or otherwise, unless the principal debtor’s prior request or consent as to his being a party is established. If the bond is in the name of any individual as the creditor, it is enforceable in execution proceedings by virtue of the provisions of section 145, Civil Procedure Code provided it is under the order of the court. If it is a sort of undertaking given to the court section 145, Civil Procedure Code will not apply, but nevertheless, the court can enforce it under its inherent powers.”
28. In Zamindar of Sannokhemedi v. Susi Jamala Patta Maha Devi, AIR 1940 Mad 850, the Madras High Court held (at page 852):
“…it is quite clear that in proceedings under section 144, no order for restitution can be made against sureties. There is of course no objection to the sureties being made parties in such proceedings, as they are vitally interested in the amount that may be found due by way of restitution …. If the defendant is found liable to pay anything to the plaintiff by way of restitution, it will be for the plaintiff to enforce that order against the sureties by proceedings under section 145, Civil Procedure Code ….”
29. In Abdul Ali v. Rupchand, AIR 1953, Hyd 111, a Division Bench of the Hyderabad High Court held (at page 112):
“The question whether the surety has incurred liability under the bond depends upon the terms of the bond. Where the words in the surety bond are capable of different meanings, they must be strictly construed. In the light of these principles, it is to be seen whether the decree-holder was entitled to proceed against the surety as soon as there was failure on the part of the judgment-debtor to pay the decretal amount or whether an order of the court, and consequent failure of the judgment-debtor to comply with that order was necessary to give rise to the obligation of the surety. In my opinion, that is not a case in which mere non-payment by the judgment-debtor would give a cause of action to the decree-holder. The bond expressly provides that in case the judgment-debtor fails to comply with the order of the court to pay the decretal amount, the surety would incur his liability to pay the stipulated sum.
30. It was further held (at p. 113) :
“As pointed above, the surety’s liability would be restricted to the terms of the agreement. The terms are clear that the judgment-debtor would be called first to pay the amount. Thus, according to the terms of the bond, the liability of the surety would only rise when the judgment-debtor has failed to deposit.”
31. In Syed Fakir Syed Hussain v. Abdul Samad Khan Fazal Khan, AIR 1938 Nag 101, the Nagpur High Court held (headnote) :
“Section 144 was not intended to apply to sureties but only to the parties to the suit or their representatives. The surety only undertakes to return the property, namely, the material object and not the liability for safeguarding the rights of the owner in respect of the property. If any loss is caused to the owner by reason of the property not being returned in the condition in which it was when it was taken, or if, for any other reason, the owner suffers damages, that has nothing to do with the execution of the decree as such.”
32. In Nainsingh v. Koonwarjee, , the Supreme Court held (at page 998) :
“The High Court, in our opinion, erred in holding that the correctness of the remand order was open to review by it. The order in question was made under rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination inview of section 105(2) of the Code which lays down that, where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. The High Court has misconceived tha scope of its inherent powers. Under the inherent power of courts recognised by section 151, Civil Procedure Code, a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provision which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the court cannot make use of the special provisions of section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further, the power under section 151 of the Code cannot be exercised as an appellate power.”
33. The Supreme Court, in the State Bank of Saurashtra v. Chitranjan Ranganath Raja, , held (at p. 1534);
“The limited question is whether this court can grant restitution. Prior to the Amendment Act, 1976, an application for restitution under section 144 in all cases had to be made to the court of first instance. Even since the amendment the substituted expression “the court which passed the decree or order” would as per clause (a) of the Explanation, mean the court of first instance because the expression ‘the court which passed the decree or order’ has been deemed to include where the decree or order has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e., the court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation clause (a) of the Explanation would be attracted and an application for restitution will have to be made to the court of first instance, i.e., the Court of Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a court’ does not exist. Therefore, it would not be proper for this court to direct restitution. However, ther will be no justification for the appellant bank to withhold the amount which was collected from the surety on a mere demand. Therefore, an application for restitution made by the surety would not lie to this court and it would stand disposed of accordingly.”
34. In State of Maharashtra v. M. N. Kaul, , 1636; [1968] 38 Comp Cas 1, 4, the Supreme Court held as under :
” The question is whether this guarantee is enforceable. That depends upon the terms under which the guarantor bound itself. Under the law, he cannot be made liable for more than he has undertaken. It is often said that a surety is a favoured debtor for, in the expressive phrase of Lord Westbury L. C. In Blest v. Brown [1862] 4 De GF & J 367, at page 376 :
‘Your bind him to the letter of his engagement.
Beyond the proper interpretation of that engagement you have no hold upon him. ‘These observations have been recalled in cases of guarantee and suretyship by the Judicial Committee and also by this court. See for example Pratapsingh Moholalbhai v. Kashavlal Harilal Setalvad, M.S. Anirudhan v. Thomco’s Bank Ltd., . To this, there are some exceptions. In case of ambiguity when all other rules of construction fail, the courts interpret the guarantee contra proferentem that is, against the guarantor or use the recitals to control the meaning of the operative part where that is possible. But, whatever the mode employed, the cardinal rule is that the guarantor must not be made liable beyond the terms of his engagement.”
35. The statutory provisions relevant in this behalf may be set out.
36. Section 144 of the Code of Civil Procedure reads:
“144. Application for restitution.- (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose, the court which passed the decree or order 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 order or such part thereof as has been varied, reversed, set aside or modified ; and for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1). ”
37. Section 145 of the Code reads :
“145. Enforcement of liability of surety. – Where any person has furnished security or given a gurantee. –
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken in execution of decree, or
(c) for the payment of any money, or for the fulilment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed in the manner herein provided for the execution of decrees, namely :
(i) if he has rendered himself personally liable, against him to that extent ;
(ii) if he has furnished any property as security, by sale of such property to the extent of the security ;
(iii) if the case fails both under clauses (i) and (ii), then to the extent specified in those clauses,
and such person shall be deemed to be a party within the meaning of section 47 :
Provided that such notice as the Court in each case thinks sufficient has been given to the surely. ”
38. Section 151 of the Code reads :
” 151. Saving of inherent powers of court. – Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. ”
39. On the above conspectus, even on a strict construction, section 145 applies to personal liability and, in this case, the security bond executed by the guarantor in favour of the court cannot be enforced under section 145. Nevertheless, such a bond can be enforced in the execution proceedings in the exercise of inherent powers of the court under section 151, as no separate suit is necessary. It is also pain from the decision of the Privy Council, cited supra, that whenever a decree is varied or reversed in circumstances giving rise to a right by way of restitution, such right arises automatically and is claimable under section 144. In this case, the security bond makes it explicit under which the guarantor agreed for making themselves liable for the restitution of Rs. 16 lakhs and ” thus the guarantor undertakes to pay the aforesaid amount which may be ordered to be paid by way of restitution to the plaintiff in case the plaintiff succeeds in the appeal before the High Court of Judicature at Hyderabad as though the guarantor is a party to the proceedings and the plaintiff is entitled to recover an amount of Rs. 16 lakhs as if the guarantor is the person who withdrew the amount and realised the amount in the execution of the decree which may be passed without recourse to a separate suit “. S, the guarantee could not be more comprehensive than the one executed herein by the Karanataka Bank. Thus, the guarantor made themselves liable for payment on an application to be filed under section 144, Civil Procedure Code, and, under its inherent powers, to enforce the security dispensing thereby with the filing of a separate suit.
40. None of the case cited on behalf of the respondents touch upon the surety being executed in the court. They are in relation to the personal liabilities which the surety promised to make good without any reference to the court proceedings between the individuals. That apart, a Division Bench of this court in Bapanna’s case, , also held that where a security bond is given to the court, section 151 applies in the interest of justice and not section 144. The contention of learned counsel for the respondents, therefore, has no substance.
41. The further contention is that, as per the bond, first, the petitioner bank will have to initiate proceedings against the respondents herein for recovery of the amount, failing which only they are entitled to proceed against the Karanataka Bank. I apprehend, this too has no substance. The liability of the surety is co-extensive with that of the principal debtor. (vide Ata Hussain v. Mustafa Hussain, , Hazari Lal v. Chhaju Ram,
42. It is also fairly settled that the surety can be proceeded against before initiating proceedings against the judgment-debtor and, so, there is no substance in the argument of learned counsel for the respondents that the judgment-creditor first must take steps to proceed against the judgment-debtor and only on failing to recover from him, he could proceed against the surety.
43. In fact, in this case, this debate appears to be an exercise in futility in as much as when E. A. No. 363 of 1984 was filed by the petitioner-bank seeking a direction for the payment of Rs. 16 lakhs, the Karnataka Bank deposited the said sum in compliance thereof without any demur whatsoever. No objections have been raised on behalf of the Karanatraka Bank. Indeed, their conduct throughout has been that, in pursuance of the guarantee given, they are bound to deposit the amount by way of restitution and never has the Karnataka Bank raised any objection whatsoever. Further, the Karnataka Bank has not field even a review petition. It is only respondents Nos. 1 to 3, the judgment-debtors, who have filed the review petition. It is only at their instance that the court had reviewed its order. In such circumstances, however, the position would be that, if at all the judgment debtors have any grievance or could reasonably be expected to have any grievance, that would be against the Karnataka Bank. They could have initiated any proceedings that would be open to them under law against the Karnataka Bank or put forth any defence as and when that arises when the Karnataka Bank would intend to recover the money paid by way of contribution or otherwise of get the fixed deposit receipts (FDRs) encashed, which appears to be the case of the judgment-debtors as pe their averments that they had deposited the FDRs with the karnataka Bank and, without their consent, the Karnataka Bank paid Rs. 16 lakhs on the strength of the FDRs.
44. There is yet another query which has been raised on behalf of the petitioner-bank that a review can be ordered when it is made out that there is an error of law apparent on the face of the record. In this case, the respondents, in my view, have failed to make out that there was any error of law, much less a manifest error, so as to be entitled for a review of the order passed earlier. Every error of law cannot be said to be an error apparent. (vide Thugabhadra Industries Ltd. v. Govt. of A. P. .
45. One more aspect. The guarantee has been given to the court for deposit of the amount in case the appeal is allowed, reversing the judgment under appeal. Under equitable remedy, this court, in my judgment, is competent to hold so without necessarily standing on technicalities as to whether restitution has to be ordered by virtue of the provisions enacted under section 144 or section 145 read with section 145, Civil Procedure Code. It inheres in the court to give relief to the person who gets a decree in his favour and to whom an assurance has been given that, in case he is entitled by reversal of the decree to a particular relief for which it has been guaranteed by virtue of the orders of the court, to enforce the same and effect payment to the decree-holder. It has been fairly settled now that when a relief is sought for quoting a wrong provision of law, the court should not hesitate in according relief in favour of the applicant who cited a wrong provision of law by tracing it to a correct provision.
46. From the foregoing, therefore, what is manifest is that, by virtue of the orders of the court in an application filed by the petitioner herein for restitution of the amount, the said amount was deposited by the guarantor, which it rightly did and to which the petitioner is legally entitled to be restituted, and so was rightly restituted, which order could not have been reviewed as the same was not sought for by the person against whom actually restitution was ordered. Indeed, there was no manifest error of law enabling the lower court to review the order passed earlier. Therefore, the order under revision is liable to be set aside.
47. The lower court having allowed the review petitioner and dismantling thereby the order of restitution, strangely allowed the amount which was deposited by the Karnataka Bank to be withdrawn by respondents Nos. 1 to 3 which, in my undoubted view, resulted in an act of grave error. It is rather incomprehensible as to how this direction could have been given. Even assuming that the order made by the lower in reviewing the earlier order, resulting in the dismissal of the application for restitution, is correct, yet the only course left with the court was to allow the amount. The lower court’s order is to the following effect :
” Then the question arose to whom the money should go. Since the petitioner are dismissed, the Bank of India is not entitled to the amount. Karnataka Bank (D-6) is a third party to the suit and the court cannot pay money to him. The Hon’ble High Court in L. P. A. Nos. 178 of 1976 and 185 of 1976 held that the money should be paid only to defendant No. 1, i. e., Vijay Transport, and nobody else against proper bank guarantee furnished by Vijay Transport. Vijay Transport has already furnished joint bank guarantee of Karnataka Bank Ltd., which was accepted by the court and it should be kept in force and valid. Therefore, the only way left to this court is to pay money to Vijay Transport in accordance with the directions of the Hon’ble High Court in LPAs. Therefore, the money of Rs. 16,00,000 with interest accrued therefore which was in the court’s deposit is to be ordered to be paid to Vijay Transport (R-1) in this case. ”
48. To say the least, the aforesaid order is appalling. The reference to the order in the LPAs has no nexus with the order that was passed later in E. A. No. 363 of 1984 in pursuance of which money was deposited in the court by the Karnataka Bank and how Vijay Transport (respondent NO. 1) could, by any stretch of imagination, be entitled for the withdrawal of the said amount.
49. Hence, while setting aside the said order, I direct the lower court to initiate necessary proceedings for the recovery of the said amount from the party, viz., Vijay Transport, the 1st respondent herein, to the credit of O. S. No. 12 of 1975 and subsequent E. As. levied in that behalf and thereafter pass necessary orders for payment in turn to the petitioner-bank in the light of the observations made hereinabove.
50. In the result, the orders passed in E. A. No. 363 of 1984, E. A. No. 196 of 1985 and E. A. No. 207 of 1985 dated December 30, 1985, are set aside and the revision petitions are allowed. No