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Devi Ramchand Waswani Vs. S.V. Bastikar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 849 and 865 of 1966
Judge
Reported inAIR1968Bom57; (1967)69BOMLR121; ILR1967Bom945; 1967MhLJ326
ActsCode of Civil Procedure (CPC), 1908 - Sections 144 - Order 9, Rule 13
AppellantDevi Ramchand Waswani
RespondentS.V. Bastikar
Appellant AdvocateKeshavdas Dalpatro, Adv. and ;D.S. Parikh, ;R.P. Vyas and ;V.N. Golwala, Advs. (In No. 865 of 1966)
Respondent AdvocateD.S. Parikh, ;R.P. Vyas and ;V.N. Golwala, Advs. (In No. 849 of 1966) and ;A.N. Mirchandani, Adv.
Excerpt:
civil procedure code (act v of 1908), sections 144, 151, 115, 37(a), 38; order ix, rule 13 - applicability of section 144 when decree reversed by court passing it -- whether reversal must be by superior court -- section 144 whether mandatory -- party to suit unaware of date of hearing -- such unawareness when constitutes sufficient cause within order ix, rule 13.;section 144 of the civil procedure code, 1908, provides for every case of a reversal or variation of a decree or an order including the reversal by a superior court, by the same court in the same proceedings or by a different court in different proceedings. gopal paroi v. swama bewa [1931] a.i.r. cal. 14, dissented from. ;shivbai v. yesoo (1918) i.l.r. 43 bom. 235 : s.c. 20 bom. l.r. 925, shivappa v. ramlingappa (1936) 39 bom......(1) these two matters arise out of an order passed by the judge of the city civil court upon a notice of motion being taken out before him to set aside an ex parte decree. the learned judge set aside the ex parte decree, refused immediate restitution which was sought but directed that the restitution be effected after the suit was disposed of if such restitution was necessary at that time. (2) the plaintiff filed a suit against the defendant for a declaration that the defendant was her licensee, of the suit premises in 1959 and that the period of licence, viz., 11 months having expired the plaintiff was entitled to possession of the suit premises. the suit was contested by the defendant mainly on two grounds (1) that the defendant was a sub-tenant of the plaintiff and (2) that the.....
Judgment:

(1) These two matters arise out of an order passed by the Judge of the City Civil Court upon a Notice of Motion being taken out before him to set aside an ex parte decree. The learned Judge set aside the ex parte decree, refused immediate restitution which was sought but directed that the restitution be effected after the suit was disposed of if such restitution was necessary at that time.

(2) The plaintiff filed a suit against the defendant for a declaration that the defendant was her licensee, of the suit premises in 1959 and that the period of licence, viz., 11 months having expired the plaintiff was entitled to possession of the suit premises. The suit was contested by the defendant mainly on two grounds (1) that the defendant was a sub-tenant of the plaintiff and (2) that the premises being of a Co-operative Society the Civil Court had no jurisdiction to decide any disputes between the parties as the exclusive jurisdiction to decide such disputes was in the registrar of Co-operative Societies under Section 91 of the Co-operative Societies Act.

(3) This suit reached hearing on March 25, 1966 after being placed for hearing on several earlier dates. When the suit was called out neither the defendant not his counsel were present. Plaintiff led her evidence and an ex parte decree was made on the same day. Execution was taken out by the plaintiff and on May 14, 1966 possession was taken by the plaintiff and the decree was fully executed.

(4) The defendant thereafter took out a Notice of Motion on May 19, 1966 to set aside the ex parte decree on several grounds. It was alleged that his Counsel Mr. kashbker was not shown on the record and that therefore his counsel was unable to inform the defendant of the suit being on board for hearing on March 25, 1966. Not being aware that the suit was fixed for hearing on March 25, 1966 defendant did not attend Court. It was further alleged that the defendant left for Delhi on April 22, 1966 and his family also left Bombay and went to Delhi on May 2, 1966. This decree was executed on May 14, 1966 during the absence of all the members of the defendant's family from the premises in dispute. The defendant returned to Bombay on May 15,1966 and having come to know that the premises were taken over by the plaintiff this Notice of Motion was filed on May 19, 1966. The Notice of Motion was supported by an affidavit and it was contested by the plaintiff .

(5) Plaintiff's contention on this point was that there was not necessity for Counsel Mr. Kasbekar being shown on the record as representing the defendant for the reason that this counsel did not put in his appearance on behalf of the defendant in this suit. The name of the one Dinkar Rao was shown as counsel for the defendant and his Vakalatnama being on record as counsel there was no irregularity in the routine followed by the Court which had caused any misapprehension in the mind of the defendant. It was also urged by the plaintiff that the fact that Mr. Kasbekar had not put as appearance on behalf of the defendant was made very clear to the defendant when the defendant had applied for an adjournment n the ground that his counsel was ill. Since there was no irregularity committed by the office there was not occasion for the defendant to be misinformed about the hearing of the suit. The plaintiff therefore urged that no sufficient cause was disclosed by the defendant why the ex parte decree should be set aside.

(6) The learned Judge having considered the affidavits of the parties and the other circumstances obtainable in the case held the although there was not sufficient cause disclosed under order 9 Rule 13 of the Civil Procedure Code, there was good cause shown for taking action under the inherent powers of the Court under Section 151 of the Civil Procedure Code. The lower Court, therefore, set aside the ex parte decree. The lower Court, however, refuse to grant restitution which was also sought in circumstances which were against the defendant for grant of restitution. Against the order setting aside the ex parte decree the plaintiff has file revision application No. 849 of 1966; and against the order refusing to grant restitution the defendant has filed civil revision application of one order they are disposed of by the same judgment.

(7) Mr. Keshavdas appearing for the plaintiff urged that judgment given by the lower Court and the finding recorded by it was sufficient to lead to an inference that no Court could have made the order of setting aside the decree. The application for setting aside the decree was made under Order 9 Rule 13 of the Civil Procedure Code under which the defendant has not severed or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The learned judge observes as follows.

'In the light of the above discussion, I am not satisfied that it can be said that a sufficient cause has been made out for non-appearance'.

The learned judge further observes at the bottom of paragraph 4 as follows.

'It is precisely on that account I have come to the conclusion that no sufficient cause is made out as understood with in the meaning of Order 9 Rule 13 Civil Procedure Code'

The learned Judge , however does not disposed of this Notice of Motion on that point. He was satisfied that this was a proper case where the Court should invoke the provisions of Section 151 and set aside the ex parte decree as he was satisfied that though there was no sufficient cause there was a good cause for the non-appearance of the defendant .

(8) Mr. Keshavdas urged that under Order 9 Rule 13 at least one of two things has god to be shown by the defendant either that the summons was not served or that there was sufficient cause which prevented the defendant from appearing on the date of hearing. There is no allegation in the present case that the summons was not served because the defendant has appeared in suit and the learned Judge having given a definite finding that there was not sufficient cause under Order 9Rule 13 there was no other alternative for the Court but to discharge the rule granted on the Notice of Motion. After having come to the conclusion that no sufficient cause was disclosed there was no further jurisdiction in the Court to consider whether any good cause existed otherwise than as sufficient cause. On the finding therefore that there was not sufficient cause within the meaning of Order 9 Rule 13 Mr. Keshavdas urged that the Notice of Motion should have been rejected.

(9) On going through the reasoning of the learned Judge holds that there was no sufficient cause disclosed within the meaning of O.9R. 13 of the Civil Procedure Code, the learned Judge in fact considered circumstances which would go to show that a good cause did exist. I fail to see the distinction raised by the learned Judge between the expression ' sufficient cause' and 'good cause'. Either the cause is sufficient and good enough for the Court to take action or it is not sufficient nor good enough for the Court to take action. The learned Judge seems to be under a misapprehension that there is some definition of the expression 'sufficient cause' found in O.9 R. 13. Unfortunately Mr. Keshavdas was unable to point out to me any provision of law or any decided case where this expression was defined. In any case, the word 'sufficient' shows that the learned Judge before whom the cause is put has to consider whether it is sufficient or not - and that itself would show that there could be no definition of the expression 'sufficient ' within the meaning O.9 R. 13.

(10) The grounds made out by the learned counsel for the defendant in the lower Court were that Counsel Mr. kashbker had twice put in his vakalatnama in the suit but on both occasions it appears that the proper notice was not taken by the office and no endorsements made in any of the registers maintained by the Registrar of the City Civil Court to show that Counsel Mr. kashbker represents the defendant in the instant case. There was an affidavit made by counsel Mr. kashbker that on the first of these two occasions he had handed over the vakalatnama to the defendant himself. The affidavit of the Counsel does not go to show whether he had verified the fact that his vakalatnama was noted by the office so that it would appear as an appearance for the defendant in the registers maintained by the office. It was also urged before the lower Court that an application was made on behalf of Mr. Dinkar Rao, who was he counsel for the defendant before Mr. Kasbekar came in on September 24, 1964, to with draw his appearance and the same was granted by the Court as can be seen from the endorsement in the Roznama dated September 24, 1964.

(11) It was then urged that his first Counsel having withdrawn and the second Counsel having put in his appearance and having appeared on several days on which the suit was on board for some reason or the other, there was a belief in the defendant that Counsel Mr. Kasbekar fully represented him and that the Counsel would inform him of the next date of hearing. It was also pointed out to the lower Court that there was no practice in the City Civil Court of giving dates of hearing for suits and that the parties had to depend upon their Counsel to let them know the date of hearing. Since Mr. Kasbekar's name was not shown in the list of case fixed for hearing on March 25, 1966, Mr. Kasbekar could not know that the suit was on board and therefore it was impossible for the defendant to be aware of the fact that the suit was on board for hearing. On these grounds it was urged before the lower Court that there was sufficient cause for setting aside the ex parte decree.

(12) The learned Judge came to the conclusion that there was not sufficient cause disclosed on these grounds. But the learned Judge further considered other grounds and he came to the conclusion that there was good cause for action to be taken under section 151 of the Civil Procedure Code. The good cause that is considered by the lower Court is (1) that no adverse order could be passed against a party without giving him a hearing.,(2) that the City Civil Court does not give fixed dates for suits, (3) that the premises were residential premises, (4) that the defendant was under the impression that he was being represented by an advocate and (5) that the filling of the vakalanama was ministerial function by the non-performance of which the consequence of not being aware of the date of hearing came about. The learned Judge in paragraph 5 of his judgment observes as follows;

'From the material before me, it is abundantly clear that the defendant was under an impression that he was being represented by Advocate. A non-performance of ministerial act in not filing the vakalatnama, therefore, should not prejudice a litigant before this Court . In the circumstances, in my view, in the interest of justice, it is necessary that the ' ex parte decree should be set aside'.

Without the operation of Section 151 this could well have been done under O. 9. R. 13 itself as there is in my opinion no difference at all between ' sufficient cause' and good cause . If the cause is good then it6 would also be sufficient. In other words, the learned Judge although he held that there was good cause erroneously held that it was necessary to apply Section 151 in the circumstances. The learned Judge could acting within the provisions of O.9 R. 13 have held that the for the following reasons which re given

by him sufficient cause was disclosed by the defendant which prevented him from appearing on the date of hearing.

(13) If a party is unaware of the date of hearing and the unawareness is not due to any fault of his and he had taken all the precautions necessary in this respect for being made aware of the date of hearing of suit then 'being unaware' would be sufficient cause which would prevent a party from appearing in Court. In the instant case, there is no doubt that the defendant was under the impression that he was being represented by Counsel Mr. Kasbekar. On two occasions he had applied for an adjournment on the ground that his Counsel Mr. Kasbekar was ill and unable to attend Court . If the defendant was not under the impression that Mr. Kasbekar was his Counsel he could not have made such an application. Counsel Mr. Kasbekar has made an affidavit that he had twice signed the vakalatnama and had given it once to his clerk and the second time to the defendant for being filed in the case. The learned Judge in holding that the defendant has not satisfactorily proved that his Counsel Mr. Kasbekar had the proper representation to appear for him observed as follows; 'This is however not to disbelieve the Advocate'.

(14) So far as 'sufficient cause' is concerned the words have not been specifically defined anywhere but some indication as to the extent of the sufficiency can be gathered by reference to the observations of the Supreme Court in Union of India v. Ram Charan, : [1964]3SCR467 . The point before their Lordships was whether an application for excuse of delay for bringing the heirs on record disclosed 'sufficient cause' for not making it in time. The observations of their Lordships in paragraph 8 at page 219 are as follows:

'Of course, the Court in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established both because the question does not relate to the merits of the dispute between and because if the abatement is set aside the merits of the dispute can be determined while, if the abatement is not set aside the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance'

These observations were necessitated as one of the grounds urged by the Counsel representing the party in default was that the expression 'sufficient cause' should be liberally construed in order to advance the cause of justice. Considering the observations of the Supreme Court and the finding given by the lower Court, I hold that there was sufficient cause within the meaning of O.9 R. 13 for setting aside the ex parte decree.

(15) Mr. Keshavdas, however, urged that the revisional Court's powers are to consider the exact order passed by the Court and not to have a variation on the order and then to hold that it is justified. He urged that the lower Court acted under the provisions of S 151 and it was therefore necessary for this could have acted under Section 151 in these circumstances and if it could not, whether it is necessary to interfere with the order. In this connection the learned Judge Counsel refused me to three decisions of the Supreme Court in Padam Sen v. State of U.P : 1961CriLJ322 and Ramkarandas v. Bhagwandas; : [1965]2SCR186 for the propositions that Section 151 of the Civil Procedure Code is not to be so liberally construed as to apply it in every case wherein the specific provisions however, find that no such inflexible rule cause be found on the ratio of any of these Supreme Court decisions.

(16) In : 1961CriLJ322 the point before their Lordships was whether recourse could be had to the inherent powers of the Court to dispossession something which the Court would have no power to dispossession otherwise. An allegation was made the defendant in the suit that there were some books with the plaintiff which were likely to be forged during the pendency of the suit and therefore it was necessary to get those books in Court so that there would be no occasion for the plaintiff to commit forgery. There being no power in a Civil Court to get possession of books forcibly form a party, the provisions of Section 151 were applied. The trial Court appointed a Commissioner to get possession of the books. Their Lordships dealing with the point in paragraph 9 of the Judgment observed

(17) So far as the decision in : [1964]3SCR467 is concerned their Lordships found as a fact that no grounds at all were made for setting aside the abatement and that in these circumstances recourse cannot be had to Section 151 of the Civil Procedure Code for setting aside the order of abatement. In paragraph 5 of the Judgment their Lordships observed as follows;

'There is not a word in the application that the appeal had abated and that the abatement be set aside. The error in this respect seemed to have further led to the error in stating that the reason for the delay given the application was that the Divisional Engineer Telegraphs, came to know about Ram Chanran's death on February 3, 1958 there being no reason mentioned in the application was just stated as a matter of fact that Engineer had come to know of the death on February 3, 1958'.

Their Lordships of the Supreme Court held in the circumstances that the question of invoking the powers under Section 151 was not called for in the circumstances, of that case.

(18) In : [1965]2SCR186 , which was also referred to by Mr. Keshavdas, it was pointed out that an argument before the Court was that when there is a specific provisions of law for a particular remedy then if grounds are not shown for the exercise of that particular provision recourse cannot be had by the party to Section 151 of the Civil Procedure Code for invoking the inherent powers of the Court . The observations in the earlier decision of the Supreme Court in Manohar Lal v. Hiralal, : AIR1962SC527 relied upon in this respect were the following;

'The inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure.

(19) The argument advanced by Mr. Keshavdas fort the plaintiff relying upon these authorities was that if there be a specific provision in the statute for a particular remedy by was of procedure then for that remedy recourse could be had only to that provision and not to the inherent powers of the Court under Section151 of the Civil Procedure Code. Since in the instant case the ex parte decree could be set aside under the provisions of O.9, R. 13 the Court could look to this provision only in granting that relief. If that provision was not of any assistance to the party, the Court could no invoked its inherent powers to grant relief which cannot be obtained under the statute. The specific provision for setting aside the ex parte decree in O. 9, R. 13, of the Civil Procedure Code. If no relief could be granted under that provision, ,then no relief could also be provided under the provisions of Section 151. In the view that I have taken that the good cause that was found by the learned Judge would also be sufficient cause within the meaning of O.9, R. 13 it is not necessary for me to decide this question wherein the powers of this Court to interfere in revision under Section 115 of the Civil

(20) Mr. Parikh, however urged that even if the Court had erroneously acted under Section 151 this Court should not interfere. Mr. Parikh referred me to the decisions of the Supreme Court Procedure Code were considered. It was urged by Mr. Parikh that the first and the primary question that has to be considered by a Court acting within the powers under Section 115 of Civil Procedure Code was whether an erroneous order passed by the Court affected the jurisdiction of the Court . In other words whether by that erroneous order the Court had accepted jurisdiction where it had none or refused to exercise jurisdiction when it did have it any there caused injustice to the other side. The latest decision of the Supreme Court on this point is Pandurang v. Maruti, : [1966]1SCR102 wherein their Lordships further clarified clause (circumstances) of section 115 of Civil Procedure Code, however, was earlier considered in Abbasbhai v. Gulamnabi : [1964]5SCR157 . In that case the point before the Supreme Court was whether an apparently erroneous order passed by the lower Court is capable of being corrected the High Court while acting within the provisions of Section 115 of the Civil Procedure Code. Their Lordships found that the order was apparently erroneous but none the less their Lordships held that the High Court could not correct even such an erroneous order unless the High Court was satisfied that by passing that order the lower Court had either taken upon itself jurisdiction which it did not have or refused to exercise jurisdiction which it had. Their Lordships after considering the powers of the High Court set aside the corrective order made by the High Court and restored the apparently erroneous decision of the District Court. Mr. Paridh urged that the facts of the instant case are almost similar. The question before the lower Court was whether an ex parte decree should be set aside. The provision for setting aside the ex parte decree is made under O. 9, R. 13 two circumstances . Section 151 refers to inherent powers of the Court which according to the Privy Council exists even otherwise than under S. 151 of the Civil Procedure Code. Decisions of this Court wherein S. 151 was brought into operation for setting aside ex parte decree were referred to by Mr. Parikh viz ., Saurpsing v. Nilkant, : AIR1953Bom109 and Bai Dhai v. Shankarbhai, : AIR1954Bom214 . Mr. Parikh urged that if there were decisions of this Court wherein action was taken by the Court for setting aside an ex parte decree after acting under the provisions of S. 151, then it was open to the lower Court to act either under O.9,R. 13, or under S. 151 of the Civil Procedure Code. If, therefore, the cause was considered to be good by the lower Court under S. 151 then that would be a decision of the Court upon merits of a point the consideration of which was well within the jurisdiction of the Court . It was therefore, urged by Mr. Parikh that the question whether action should or should not have been taken under S. 151 was within the jurisdiction by acting within S. 151. No exception could be taken to the fact found that the cause was good. I have already pointed out that the learned Judge could as well have acted under the provisions of O. 9, R. 13, to hold that the cause which he considered good under S. 151 was also sufficient. It appears to me that the powers of the revisional Court being such as are interpreted by the Supreme Court in the decisions which I have pointed out it is not possible to interfere with the orders passed by the lower Court in setting aside the decree

(21) The next question raised was about the refusal of immediate restitution and the grant of deferred restitution prayer for restitution of the lower Court. Mr. Keshavdas urged that the order passed by the lower Court in the following terms was beyond its jurisdiction and has necessarily to be aside.

'...but it is hereby ordered that in the event of the plaintiff's suit being dismissed at the final hearing by this Court (regardless of the appeal that may be filed by the plaintiff ) the plaintiff dispossession put the defendant in possession of the suit premise within seven days of the dismissal of the suit failing which I direct the Sheriff of Bombay to put the defendant in possession of the suit premise through one of his bailiffs'

It was urged that the defendant prayer for restitution of the suit premises having been rejected this order should not have been passed. Since I am dealing with the entire question whether restitution which was refused by the lower Court should have been granted, I will consider this point along with the main point.

(22) As regards restitution Civil Revision Application No. 865 of 1966 made by the defendant has to be considered. Mr. Parikh urged that S. 144 of the Civil Procedure Code us mandatory and that whenever a decree passed by Court is varied or reversed, the Court which passes the decree must grant restitution and cannot refuse it. In the instant case an ex parte decree which was made on March 25, 1966 was set aside by the Court on July 4, 1966 and according to Mr. Parikh restitution should have been granted as a matter of course.

(23) What was urged by Mr. Parikh was that restitution is obligatory upon the Court and it cannot be the subject-matter of discretionary order. Reliance was placed upon the wording of S. 144 (1) read along with S. 144(2) of the Civil Procedure Code . It was urged that if there was a discretion in a Court acting under the provisions of S. 144(1) to refuse restitution, the party would be deprived of any remedy to get this relief of restitution. If therefore no suit can be filed to get restitution obtainable under S. 144(1) and the Court is given a discretion to refuse restitution, then it would appeal that the party would be deprived of any remedy what over and the successful party would be deprived or the property. Mr. Parikh therefore urged that once the provisions of S. 144 were made applicable, it was obligator upon the Court to pass the order for restitution and that it has no discretion to refuse it. In this connection reliance was placed by Mr. Parikh on Binayak Sawain v. Ramesh Chandra : [1966]3SCR24 . Their Lordships were considering the provisions of S. 144 in regard to restitution after the ex parte decree is set aside. Considering the principle of the doctrine of restitution their Lordships observed as follows;

'The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that the has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from'.

This decision also refers to the earlier decisions of the Supreme Court and the High Courts in this connection. The observations of the Supreme Court make it abundantly clear that there is an obligation upon the Court to direct restitution as a right accrues to the party upon the reversal or variation of a decree. The observations of the Supreme Court would the Court and not discretionary. It was there fore urged by Mr. Parikh that if an application under S. 144 was maintainable, then the order of restitution had to be passed as a matter of course and the Court could not exercise its discretion and refuse restitution. Mr. Parikh also urged that even if the lower Court was acting under the provisions of S. 151 for setting aside the ex parte decree, grant of restitution had to be considered under S. 144 of the Civil Procedure Code . Once the ex parte decree was set aside whether under the provisions of S. 151 or O.9,R.13, of Civil Procedure Code , claim of the Civil Procedure Code . It was pointed out by Mr. Parikh that the learned Judge erred in law in holding that the relief was equitable and discretionary. It was further urged that the learned Judge observations that 'granting of restitution would be contrary to the provisions of S. 144 of Civil Procedure Code . It was lastly urged that by taking an erroneous view of the provisions of law the learned Judge had exercised jurisdiction which he did not have.

(24) The point urged by Mr. Keshavdas, however was that there was no jurisdiction in the Court to act under the provisions of S. 144 when an ex parte decree was set aside by the same Court which had passed it. What was urged was that the wording of S. 144 made it clear that the variation or the reversal had to be at the instance of a superior Court. The relevant words of S. 144(1) are the following; :Where and in so far as a decree or an order is varied or reversed the Court of first in stance shall on the application of any party entitled to any benefit by way of restitution or other wise cause such restitution...' What was urged by Mr. Keshavdas was that there must have been some point made by the Legislature when it mentioned that ' the Court of first instance' could only be mentioned in relation to a superior Court . It was further urged that were passed by the higher Court, no action could be taken under S. 144 of the Civil Procedure Code . The words of the section, however dispossession not appear to restrict the right as urged by Mr. Keshavdas. This would be particularly obvious if the words of the original S. 583 of the Code of 1882 are considered along with the provisions of S. 144 of the Code of 1908 Section 583 of the Code of 1882 fan as follows;-

'When a party entitled to any benefit by way of restitution or otherwise under a decree passed in an appeal under this chapter desires to obtain execution of the same'.

From the expression 'entitled to any benefit under a decree passed in an appeal' the change is effected to 'where and in so far as decree is varied or reversed'. The Legislature must have intended by the alternation effected that the variation or the reversal need not necessarily be at the instance of the appellate Court either first or second. In other words, if there was a and a party became entitled to a benefit there under then the Court of first instance was authorised to entertain an application for restitution. The words 'Court of first instance the restitution would have no particular charm as suggested by Mr. Keshavdas except that since the decree would be executed by the Court of first instance Court of first instance which would be authorised to execute the decree. It is an undisputed fact that execution of a decree has got to be by the Court of first instance which passed the decree or which could have passed the decree which was subsequently passed by the Appellate Courts. The question whether action could be taken under S. 144 after the decree is set aside by the same Court was considered by several Courts including our Court . No decision of this Court has been pointed out to me wherein it has been held that S. 144 does not apply to the reversal of decree by the same Court. On the contrary, the observations of the Benches of this Court in at least two cause dispossession indicate that on earlier occasions this Court did not consider that the meaning to be given to the expression 'where and in so far as a decree is carried or reversed' is restricted to an order passed only by the Appellate Court.

(25) In Shivbai v. Yesoo, ILR Bom 235 = : AIR1919Bom175 a similar question had come before a Division Bench of this Court . The learned Judge had to consider whether a reference in such a case had to be made to the provisions of S. 144 or S. 151 of the Civil Procedure Code . The observations of Hayward J. at p. 239 (of ILR Bom) = (at p. 176 of AIR) are as follows:-

'It has been urged that the former section does not cover a case in which an ex parte decree has been set aside. But it seems to me that the words used are sufficiently wide to cover such a case though the use of the word 'varied' or 'reversed' and the reference to 'the Court of first instance ' would appear on first sight to have had primarily in view, proceedings in appeal'.

The learned Judge , however held that it would make no difference to the decision of the case whether S. 144 applied or S. 151 applied but an indication was given by the Division Bench that the meaning to be given to the expression 'varied or reversed' is not restricted. Similar are the observations of Rangnekar J. in Shivappa v. Ramlingappa 39 Bom LR 112 = AIR 1937 Bom 172. The learned Judge was considering the provisions of S. 144 and he observed as follows;

'It also is clear that reversal or variation of the decree must be in the same proceeding between the parties it may be as the result of a successful appeal or an application for review or in any other manner provided for by the Code -, and it is also clear that the cord and the reversal or modification of it must be in favour of the party applying or some one claiming under him.

The learned Judge was considering the powers of the Court to grant restitution when a decree is reversed. Of course the observations are obiter as the decree that was reversed was not an ex parte decree . However, the indication given in regard to the interpretation of the expression 'varied or reversed' is clear enough to show that no restricted meaning was given by; the learned Judge that the reversal or the variation must be at the instance of the appellate Court .

(26) In Allahabad Theatres, Ltd., Allahabad v. Ram Sajiwan Misra : AIR1949All730 an exactly similar question set aside an application for restitution would lie under S. 144 or S. 151. There the learned Judge were considering the question whether an appeal would or would not lie. The learned Judge after considering the decision of the Full Bench of the same Court in Jogendra Nath Singh v. Hira Sahu : AIR1948All252 observed:

'The language of S. 144 does not expressly rule out the case of a decree which has been varied or reversed by the same Court and although it may be conceded that the section is not very happily worded, the section seems to be couched in very general terms and there is nothing in it to rule out the case of such a decree from the purview of that section by necessary implication and my opinion is that the section would apply to the facts of the present case and that the order under appeal must be deemed to have been passed under that section.'

Sir Dinshah Mulla's commentary on the expression 'where a decree is varied or reversed', also shows that the Madras and the Allahabad High Court have taken a similar view, viz., that S. 144 would also cover a case of a decree, being reversed or varied by the same Court which passed the decree . It is pointed out by the learned author that Rankin C.J held otherwise in Gopal Paroi v. Swarna Bewa AIR 1931 Cal 14. Another case of Calcutta High Court on the same point is Ramnath Karmarkar v. Sheikh Asanulla : AIR1931Cal42 Rankin, C. J ., was dealing with a case in which the High Court had set aside in second appeal an order passed by the first appellate Court decreeing the claim against an auction-purchaser. During the pendency of the second appeal however, the plaintiff in the suit viz., the tenant whose property was sold in Court auction obtained recovery of possession of the property from Rent Court on the basis of his suit being decreed at the stage of first appeal. The second appeal was decided in 1921 and an application under S. 144 was made by the auction-purchaser in 1925. This application was held to be barred by time. There after a suit was filed by the original auction -purchaser to obtain possession from the original defendant the tenant who had obtained possession of the property sometime between 1918 and 121.

(27) Dealing with the question whether this suit was maintainable, Rankin, C. J., observed as follows:

'It is perfectly certain that a decree is only varied or reversed by a superior Court on appeal or on revision, or it may be, on reference'.

In other words S. 144 of the Civil Procedure Code was held to be operative only when a superior Court reversed or varied the decree.

: AIR1931Cal42 the learned Judges of the Division Bench differed in opinion on this very point. Mukerji J., after considering the authorities cited, observed as follows:-

'As at present advised I am inclined to take the view that the words 'Court of first instance' in S. 144 sufficiently point to the intention on the part of the Legislature to confine the applicability of the section to cases where the variation or reversal has been made or is a consequences of an order passed, by a superior Court .'

Guha J., however, differed and observed as follows;-

'I am inclined to think that S. 144 which embodies the rule to be followed in case where restitution is sought after reversal or variation of decree contemplates all cases of reversal or variation of on appeal or revision only.'

In this latter case the Division Bench was considering the claim of a mortgagor for profits during which the mortgage was in possession of the mortgaged property having obtained the same on the strength of a decree which was subsequently set aside. Mukerji J., however, was of the opinion that since the suit in which the original decree was set aside had left this question open to be decided in an application under Section 144 of the Civil Procedure Code . It was not necessary to consider whether such an application was maintainable. The observations of Mukerji J., therefore, are really obiter. There is therefore, a difference of opinion in the learned Judges of the Calcutta High Court in regard to the point whether Section 144 only contemplates the case of a reversal or variation by a superior Court .

(29) The expression in Section 144 'the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause...' has brought about this difference of opinion. According to one view the Section does not apply unless the decree is varied or reversed by a Court superior to the one which passed it; according to the other , the section applied in all cases where the decree is varied reversed or superseded. The addition of the expression 'the Court of first instance shall' could be explained on a different hypothesis. The application under Section 144 is not an application in execution. The question then arises as to which Court has to consider the grant of relief sought under Section 144. If it were an application in execution, Section 37(a) and Section 38 of Civil Procedure Code provide for the institution of such an application for execution ,in the Court of first instance. It may therefore be that the addition of the expression 'the Court of first instance shall' was intended to provide a forum for the institution of an application under Section 155. If this interpretation is put upon the expression ' the Court of first instance shall:' then there is no vagueness in the section and it would provide for every case of a reversal or variation including the reversal by a superior Court by the same Court in the same proceedings or by a different Court in different proceedings. In this view of things with the utmost respect I am unable to agree with the view taken by Sir George Rankn that the reversal or variation could only refer to an order by a superior Court in the same proceeding.

(30) On this view it is clear that the action taken by the lower Court could only by be under the provisions of S. 144 and not S. 151. The question then arises whether refusal to grand restitution by the Court would bring the case within any of provisions of Section 115 of the Civil Procedure Code .

(31) I have already pointed out that Section 144(2) bars a suit. It is , therefore, clear that if an application is maintainable under Section 144(1) then relief could only be obtained by way of such an application and no relief can be obtained by any suit in this respect. In other words, jurisdiction of the Court wherein it has been laid down that there is a duty case upon the Court to grant restitution to correct the orders passed by the Court under a decree which was subsequently set aside making the earlier order of the Court erroneous in that respect. If, therefore, the powers of the Court acting under Section 144 were discretionary, the Court can hold that restitution should not be granted. This would amount to a denial of the only remedy to the plaintiff where a right exists. There can be no dispute about the fact that the right to get restitution exists as has been pointed out by the Supreme Court in : [1966]3SCR24 . The trial Court proceeded on the basis that it could exercise the discretion to the party. He would not get relief now because it is refused and he cannot file a suit because the same is prohibited under the provisions of Section 144(2) of the Civil Procedure Code . I am, therefore, of the opinion that there is an obligation upon the Court to grant restitution in cases where Section 144 can be brought into operation and that the Court cannot refuse to grant restitution.

(32) Mr. Keshavda brought to my notice a decision of Patel J. in Civil Revn. Appln. No. 863 of 1960, D/-6-2-1961 (Bom) wherein the learned Judge refused to grant restitution. The point, whoever, was not canvassed before the learned Judge whether the restitution; could be refused. The decision would not act as a precedent for refusing restitution. The decision of Chandrachud J. in Civil Revn. Appln. No. 436 of 1963, D/-27/4,2-5-1963(Bom) was also cited before the lower Court as well as before me but I find that the facts in that case were different from the fact in the instant case. The third decision that was cited was of Desai J. from an appeal in suit No. 5042 of 1962 (Bom) . In this decision the question was considered in a suit and not in an application under Section 144.

(33) Mr. Keshavdas also referred to a decision of the Supreme Court in Bhagwant Singh v. Sri Krishen Das, : [1953]4SCR559 , wherein their Lordships refused restitution but I find that the facts of the case which were considered by their Lordships of the Supreme Court clearly show that no benefit was earned by any alteration or the variation effected in the decree . Originally there was a decree for Rs. 3,88,300- 2-6 which was subsequently altered to Rs. 3,76,790-4-3. Installments were granted under both the decrees. In execution of the first decree which was subsequently modified, the property was sold. Their Lordships considered the terms of the decree and whether any benefit was earned by the judgment-debtor or whether in fact or in substance there was any earned by the judgment-debtor. Their Lordships were clearly of the opinion that there was no benefit earned by the judgment-debtor as there was no effective alteration of the decree . The facts of the Supreme Court case, therefore, did not enable section being sought under Section 144. The refusal of the Supreme Court to invoke the provisions o f Section 144 in the above case cannot be a ratio that even when a judgment -debtor has earned a benefit there is a discretion in the Court to refuse the benefit.

(34) Considering the facts of this case, therefore, I hold that there was an obligation cast upon the lower Court to grant restitution. That obligation was not discharged by the lower Court and discretion was exercised. By exercising that discretion the lower Court refused to pass an obligatory order and jurisdiction was exercised as if it had a discretion when hold that the order passed by the lower Court must be corrected.

(35) In this result the rule in Civil Revn. Appln. No. 865 of 1966 is made absolute. The order passed by the lower Court is varied by granting the prayer for restitution in terms of prayer (e) in the defendant 's Notice of Motion. This order of course will not affect the tights property who has been inducted upon the premises by the plaintiff during the period when possession of the premises. If and when effect is being given to the order for restitution, the person in possession of the property is at liberty to obstruct and seek such relief as he may be entitled to. The order of the lower Court would read as follows:-

'The ex parte decree passed on 25-3-1966 set aside and the time to make the application extended till 20-5-1966, upon the defendant depositing in Court a sum of Rs. 10,500 and a further sum of Rs. 100 as costs of the Notice of Motion and costs thrown away at the hearing of the ex parte defendant within four weeks from today, on account of earlier orders for payment of accruing compensation or rent.

In the event of the deposit being made liberty to the defendant to apply to the learned Judge taking contested short cause or the learned Principal judge for directions to place the suit for hearing as expeditiously as possible.',

The petitioner in C.R.A. No. 865 of 166 will get the costs of the petition from the respondent-plaintiff .

(36) The Rule in Civil Revn. Appln. No. 849 of 1966 is discharged with costs subject to such modification in the order in regard to the restitution as stated above.

The order not be executed for a period of four weeks form today.

(37) Ordered accordingly.


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