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Shivappa Dhondappa Biradar Vs. Ramlingappa Shivappa Biradar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 269 of 1934
Judge
Reported inAIR1937Bom173; (1937)39BOMLR112
AppellantShivappa Dhondappa Biradar
RespondentRamlingappa Shivappa Biradar
DispositionAppeal dismissed
Excerpt:
.....v of 1908), section 144-application for restitution-original decree set aside by decree in another suit-suit between some parties to first decree and strangers-whether application sustainable-inherent jurisdiction of court, whether such application competent under.;the party coming under section 144 of the civil procedure code, 1908, has first to show that there was a decree in consequence of which some party to the record had obtained a benefit to the detriment of the applicant; and, secondly, that, that decree having been varied or reversed, the applicant is entitled to be restored to the position in which he would have been but for the decree which ultimately has been declared to be erroneous. the reversal or variation of the decree must be in the same proceeding between the..........however, ramlingappa, who is respondent no. 1 here, filed a darkhast to carry out lingappa the partition decree made in suit no. 347 of 1919. as the lands were assessable to government revenue, the decree was sent to the collector to effect. a partition. the collector found that as all the lands had been alienated by somanna, it was not possible to give effect to the direction contained in the decree to effect partition in such a manner as to allot to the share of somanna the lands in the possession of his alienees. therefore, the collector divided the lands equally between somanna and ramlingappa. this happened in march, 1926. in august, 1926, the court made a final decree for partition in suit no. 347. appellant no. 2 then brought a suit in 1925, being suit no. 219 of 1925, to set.....
Judgment:

Rangnekar, J.

1. The facts in this case are somewhat complicated but, so far as they are material, may be shortly stated as follows.

2. Ramlingappa and Somanna were members of a joint Hindu family and possessed eleven lands as joint family property. Somanna alienated eight out of these eleven lands to various persons, including the present appellants. Ramlingappa then brought a suit for partition against Somanna and his alienees. This was suit No. 347 of 1919. The alienees claimed that in effecting partition the equities between the parties should be adjusted, and as far as possible the lands sold to them and in their possession should be allotted to the share of their alienor Somanna. In September, 1921, a preliminary decree for partition was made, which, inter alia, directed that as far as possible the lands alienated and in the possession of the alienees should be allotted to the share of Somanna. Two days thereafter Somanna sold the remaining three lands to one Sabu, who was his brother-in-law. The latter brought a suit against Somanna for partition and possession of these lands. This was suit No. 332 of 1924. Appellant No. 2 in the present appeal, who was 1936 defendant No. 10 in suit No. 347 of 1919, applied in Sabu's suit to be made a party. The application was rejected, and apparently no further steps were taken by him. Sabu obtained a decree for partition. Before this, however, Ramlingappa, who is respondent No. 1 here, filed a darkhast to carry out lingappa the partition decree made in suit No. 347 of 1919. As the lands were assessable to Government revenue, the decree was sent to the Collector to effect. a partition. The Collector found that as all the lands had been alienated by Somanna, it was not possible to give effect to the direction contained in the decree to effect partition in such a manner as to allot to the share of Somanna the lands in the possession of his alienees. Therefore, the Collector divided the lands equally between Somanna and Ramlingappa. This happened in March, 1926. In August, 1926, the Court made a final decree for partition in suit No. 347. Appellant No. 2 then brought a suit in 1925, being suit No. 219 of 1925, to set aside the decree in suit No. 332 of 1924 against Sabu. The record is not clear whether Somanna was a party to it, but it is not disputed that Ramlingappa was not a party to this suit. This suit came up to the High Court in second appeal and was remanded for disposal according to law. The judgment of the High Court is reported in Gurlingappa v. Sabu (1930) 33 Bom. L.R. 141. On remand the decree in suit No. 332 of 1924 was set aside. It was after this that defendant No. 10 filed a darkhast in suit No. 347, which has given rise to the present appeal. The object of the darkhast was to obtain restitution by a fresh partition so as to carry out the direction contained in the decree in suit No. 347 as to the equities in favour of the alienees. The main prayer was, that the partition should be so effected that the lands alienated to the alienees should be allotted to the share of Somanna by way of restitution under Section 144 of the Civil Procedure Code. The learned First Class Subordinate Judge rejected the application as he held that the application for restitution was not competent under Section 144;. and it is from that decision that the present appeal is taken.

3. Mr. Jahagirdar, who has argued this case exhaustively, contends that the learned Judge was wrong in rejecting the application. He says that the section does not say that restitution should be made if the decree, under which some benefit has been taken by a party to the suit, is varied or reversed on appeal from that decree, and the section contemplates a case like the present one where in effect the decree made has been set aside in other proceedings, as in this case. He further says that, assuming the application was incompetent under Section 144 of the Code, the Court could have entertained it under its inherent jurisdiction; and, lastly, he says that, in any event, the application was competent under Section 47 of the Civil Procedure Code. He relies upon several cases in support of his argument, but he concedes that in terms Section 144 was inapplicable.

4. Section 144 of the Civil Procedure Code provides that :-

(I) Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree. or such part thereof as has been varied or reversed; and, 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 or reversal.

It seems to me to be perfectly plain upon the language of this section that the party coming under the section has to show that there was a decree in consequence of which some party to the record had obtained a benefit to the detriment of the applicant; and, secondly, that that decree having been varied or reversed, the applicant is entitled to be restored to the position in which he would have been but for the decree which ultimately has been declared to be erroneous. It also is clear that the 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 decree must be between the parties to the record and the reversal or modification of it must be in favour of the party applying or someone claiming under him. Upon the plain meaning of the section, therefore, I am clearly of opinion that it is impossible to hold that, if in some other suit not connected with the suit in which the application for restitution is made, the decree under which a party has been deprived of property or other benefit is set aside, the section can apply. Nor is there any authority, which is produced before me, to support a contrary view.

5. Mr. Jahagirdar, however, relies upon Jai Berham v. Kedar Nath Marivari for the purpose of showing that their Lordships of the Privy Council have laid down that Section 144 should be liberally construed, I should have thought that no authority was necessary for this purpose. The one undisputed principle of law is that no man should suffer by the act of the Court; and if the Court finds as the result of its act some party has received some benefit or advantage, and that act is set aside or modified by a superior Court finally, then the Court has and must have the power of putting the successful party in the same position in which he would have been but for what has turned out to be a wrongful act of the Court; and that exactly is the principle of Section 144 and the object of it.

6. In the Privy Council case, the facts were that an execution sale of immoveable property, which took place in 1904, and the certificate of sale, were set aside by the Privy Council in 1913, reversing the judgment of the High Court at Calcutta. The auction purchasers had been in possession since February, 1905, and the price paid by them into Court on the issue of the sale-certificate had been distributed to the holders of the decrees against the judgment-debtor. So, when the sale was set aside, the auction purchasers clearly became entitled to restitution. The sale had taken place under an order of the Court. The auction purchasers had purchased the property and paid consideration for it. The sale had been set aside by the Privy Council, and clearly the auction purchasers became entitled to restitution. Upon these facts their Lordships held that the case came under Section 144, Civil Procedure Code.

7. Mr. Jahagirdar, however, relies on the remarks of their Lordships at pages 355-356 where they observed as follows :-

It is the duty of the Court under Section 144 of the Civil Procedure Code to 'place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed'. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances lingappa towards an parties involved. As was said by Cairns L.C. in Rodger v. The Comptoir Escompte de Paris (1871) L.R. 3 P.C. 465 'One of the first and highest duties of all Rcmgnekar]. Qurts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court,' is used, it does not mean merely the; act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case'. The auction purchasers have parted with their purchase money which they paid into Court on the faith of the order of confirmation and certificate of sale already referred to. This money has been distributed amongst creditors of the judgment-debtor who had attached the unencumbered property in question and could have realized their judgment debts by a sale of this property in execution, and it would be inequitable and contrary to justice that the judgment-debtor should be restored to this property without making good to the auction purchaser the moneys which have been applied for his benefit.

In the case to which their Lordships refer, it was pointed out by the Judicial Committee that a Court of Appeal, when it reverses a judgment of a subordinate Court, has an inherent jurisdiction to order restitution of everything, which may have been improperly taken because taken in execution of a decree.

8. It is important to notice that both these cases were cases where, in the one, an order of sale made was set aside by the same Court between the same parties and the auction purchasers in execution of the decree, and in the other the decree was set aside in appeal. There is nothing in the judgments to support, except the remark as to inherent jurisdiction, the contention that if a decree has been set aside by a decree in a different suit between some of the parties to the first decree and strangers, an application for restitution would lie under Section 144. Undoubtedly their Lordships observed that Section 144 should be construed liberally, and in that case their Lordships did construe it liberally, because Section 144 in terms refers only to a 'decree varied or reversed'. An order for sale in execution proceedings or for the issue of a certificate cannot amount to decree. Literally, therefore, such an order would not lie under Section 144. To that extent their Lordships of the Privy Council observed that the section should be construed liberally, and the effect be given to it for the purpose of restitution. But the point to note is that the orders originally made were set aside in the same suit and execution proceedings, and between the same parties and not at all, as in the present case, where the original decree or the partition effected there under was not set aside in the same suit. Therefore, the learned advocate was driven to contend that the application for restitution was competent under the inherent jurisdiction of the Court. When the law of the land has provided ample specific remedies-statutory or otherwise-for the redress of a wrong suffered by a party owing to the conduct of his opponent or the mistakes committed by the Court, a party is not entitled to invoke, and the Court ought not to exercise, the inherent jurisdiction of the Court. I need not refer to the authorities on this point.

9. In this case the position was perfectly simple. When the Collector effected partition, as the appellant contends, in defiance of or ignoring the specific direction given by the preliminary decree to observe equities in effecting partition, it was open to the party aggrieved by such partition to come to the Court and complain of it and have the partition modified or set aside; and it is clear that in such a case the Court would have jurisdiction to interfere if a proper case was made out in support of the complaint. Where the Collector carries out a decree and effects partition in conformity with the decree, it is not open to the civil Courts to revise his acts or to interfere in the partition effected by him; but it is equally clear that where the Collector acts contrary to the decree, the Courts will have-and, if I may humbly say, ought to have-jurisdiction to interfere either to set aside in toto or to modify the partition effected by the Collector; and in that respect I respectfully agree with the decision of Sir Norman Macleod C.J. in Timmanna v. Govind : (1926)28BOMLR523 . There the learned Chief Justice held that, where the Collector once effects a partition in accordance with the decree, it is not competent to the Court to refer the case back to him for repartition; but if the Collector disregards the terms of the decree and divides the property in contravention of its terms, the Court is entitled to refer the case back to the Collector to partition the property in accordance with the terms of the decree; and that the Collector must follow the terms of the decree. Therefore, it was open to the appellant to complain of the partition effected by the Collector. If the complaint had been rejected and a final decree made ordering possession, it was open to the party aggrieved to appeal against it. But this course was not followed by the appellant, nor the remedy adopted. It is said by Mr. Jahagirdar that he could not have removed the obstruction caused by Sabu in execution of his decree except by a suit against him, and it was necessary for him, therefore, to bring a suit. I do not agree with him that that was the only remedy which he had to take; and it is difficult to see why he could not have made an application to the Court under Section 47 of the Civil Procedure Code under the darkhast which was being executed. But if it was found necessary to bring a suit, then he could have asked the Court to stay its hands before making the final decree, or, having filed his appeal from the final decree, he could have asked for stay of further proceedings and even asked for the stay of the appeal pending the suit which he either had filed or was contemplating to file against Sabu; and I have no doubt that if this course had been adopted, his position would have been perfectly safeguarded, of course on proper terms and subject to proper conditions. It is difficult in these circumstances, therefore, to accept the contention made in view of the facts to which I have referred.

10. The last contention that the application could be entertained under Section 47 has not been very seriously pressed,-and properly-, because the answer would be that the decree was completely executed and nothing more remained by way of executing the decree when the so-called application for restitution was made.

11. Having regard to the conclusion to which I have come, I do not propose to discuss the other cases to which the learned advocate has referred. It seems to me to be clear that each of them proceeds on its own facts, and none of them goes to the extent to which Mr. Jahagirdar wants me to go.

12. The appeal therefore, fails and must be dismissed with costs.


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