1. The Second Appeal raises two important questions of law as to whether on the facts and circumstances in this case an application for restitution is tenable and if not whether it could be treated as an application in the absence of mode of execution being stated, could be valid. The facts giving rise to these points could be briefly stated thus.
2. Dr. Mr. R. Potdar (the appellant), a dentist by profession, brought Civil Suit No.592 of 1960 against his elder brother for a declaration that the clinic run by them was a joint concern, that accounts be taken and that the defendants (respondent) be restrained from carrying on the profession in the name and style of 'D.R. Naik and Brothers.' The suit came to be instituted on October, 5, 1960. On the very day the plaintiff moved the Court for an ad interim injunction restraining the defendant from obstructing him in entering and conducting from obstructing him in entering and conducting the said clinic run in Municipal House No.40 of Nasik City. An ex parte rule was granted, but on the date fixed for the hearing of the application the parties arrived at certain terms and on the strength of the consent terms and learned trial Judge proceeded to vacate the inter in injunction, but directed the defendant to pay to the plaintiff Rs.100/- per month till the disposal of the suit. Certain other directions were given which are not relevant. This order came to be passed on February 22, 1961. The parties then proceeded to trial and the learned Judge who heard the suit finally allowed only one prayer restraining the defendant from preventing the plaintiff in taking part and conducting the clinic in dispute, but rejected the rest of the claim. However, on the interim rule which directed the defendant to make certain deposits and which were withdrawn, he intended to maintain the status quo by adding the last clause in the decree which reads thus: 'No order as to the amount deposited in Court by the defendant.'
3. The defendant preferred Regular Civil Appeal No.493 of 1962 impugning the entire decree. The learned Assistant Judge who heard the appeal, allowed it partially and modified the trial Court's decree on February 5, 1965. He declared that the joint business carried on by the plaintiff and the defendants in the name of 'Dattatraya Ramchandra and Bros.' had come to an end with effect from September 22, 1960. It is needless to detail out the other clauses, but on the point of the deposits made the effective order was: 'The amount deposited by the defendant in Court will be refunded to him.'
4. After the decree was modified and virtually reversed on the point of deposit made by the defendant pursuant to the interim order, the Defendant made an application being Miscellaneous application No.197 of 1965 in the Court of the Civil Judge, Senior Division, Nasik under Section 144 of the Civil . P.C. for restitution. On setting out the above undisputed facts he prayed for a direction to the plaintiff to produce the amount withdrawn by him, in Court and for amount withdrawn by him, in Court and for its recovery. He further pressed for interest thereon at 9 p.c p.a from the date of default till the date of payment,. This application was preferred on November 16, 1965. In answer to this application numerous contentions were raised by the original plaintiff (present appellant) by his written statement filed at Ex. 27.
5. Mr. Verlekar for the appellant did not reiterate them in extenso, but pressed only three of the contention viz. the application for restitution was not tenable; secondly it could not be treated as an application for execution as has been done by the District Court in an appeal against the trial Court's order and thirdly, the amount was deposited for the maintenance of the appellant during the pendency of the proceedings therefore it cannot be claimed back. The learned trial Judge repelled these contentions and on holding that an application for restitution was the proper remedy, directed the appellant to pay to the respondent Rs.2,200/- with future interest at 6 percent, per annum from February 5, 1965 till realisation and costs of the application. This order was made an March 10, 1967. Against this order the original plaintiff preferred Civil Appeal Procedure code, but when the learned advocate for the respondent found it difficult to sustain the order of the order of the trial Court on this ground, he seems to have urged in the alliterative before the learned District Judge that this application could be treated as an application in execution; therefore, it came to be numbered as Civil Miscellaneous Appeal No.30 of 1967. The learned District Judge was unable to share the views of the learned trial Judge that the application would lie under Section 144, Civil P.C. and in his opinion the question of restitution did not arise. He accepted the contention raised for the appellant that there has been no decree which has been within the meaning of Section 144 of the Civil P.C. However on repelling this principal contention he considered the alternative argument that these proceedings should be treated as execution proceedings. This argument prevailed with him and he proceeded to decide the matter on the footing that it could be converted into execution proceedings. In doing so he overruled the technical objection raised for the appellant that the petition was not given in the printed form nor did to 14 of Order XXI which deals with the presentation of such execution petitions, the mode of relief etc. Ultimately he dismissed the appeal without any order as to costs but confirmed the direction granting interest at 6 p.c.p.a. Subject to this modification the trial Court's order was maintained although on different grounds. It is this order which has been made by the learned District Judge on July 10, 1968 that has been impugned before me.
6. The first point raised by Mr. Verlekar for the appellant was that the application was that the application for restitution is not tenable as there was no decree which has been passed and which has been varied by the learned Assistant Judge. In support of his submissions he further pointed out that although the decree of the lower Court was challenged before the learned Assistant Judge, no Court-fees on the amount of Rs. 2,200/- which was admittedly withdrawn by the appellants, were paid. nor was that point argued and finally decided. It is only when the lower Court decree is application for resolution would lie under Section 144, Civil P.C.
7. This argument does not appeal to me as the very reading of orders passed by the trial Court in the original suit and by the learned. Assistant Judges in appeal against it, make the point quite explicit. At the cost of repetition I may mention that the learned trial Judge made no order as to the amount deposited in Court by the defendant (respondent). Virtually he allowed the appellant to retain that amount which he had already withdrawn or in his opinion he was entitled to it under some right of the other. But it is worthy to note that the order of the learned Assistant Judge in Civil Appeal No.493 of 1962 which questioned the correctness of this entire decree, has given a specific direction to the appellant asking him to refund the amount. The relevant portion may be reproduced at the cost of repetition. It runs thus:
'The amount deposited by the Defendant in Court will be refunded to him.'
This decree has become conclusive and there is nothing on the record to show that it has been varied or set aside by any superior Court. Now the parties cannot go behind this decree and the appellant will have to submit to the commands of the learned Assistant judge. A comparative reading Assistant Judge. A comparative reading of both these decrees would make it quite clear that the lower Court allowed this amount to be retained by the appellant whereas the appellate Court directed him to refund the that the lower Court's order has been varied or reversed to this extent by the appellate Court within the meaning of Section 144 and from this point of view the application under to share the reasoning of the learned District Judge that there is no decree which has been either varied or altered as a consequence of which the amounts paid have become liable to be restated .
8. In this context I may point out that the word 'restitution' used in Section 144 of the Civil P. C. connotes restoration to a party, on the variation reversal of a decree, what has been lost to him in execution of the decree or directly in consequence of that decree, though not through proceedings under it. The right to claim restitution is founded on the reversal of a decree in appeal and the law imposes an obligation the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. The right arises automatically on the reversal or modification and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. Dealing with this question on first principles it has been pointed out by their Lordships of the Privy Council in Jai Berham v. Kedar Nath, AIR 1922 PC 269 that it is the duty of the Court under Section 144 of the Civil P. C. 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 towards all parties involved'. Quoting from an earlier English case in Rodger. v. Comptoir, (1871) LR 3 PC 465, they pointed out.
'One of the first and highest duties of all Courts is to take care that the act of the Court does not 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 upto the highest Court which finally disposes of the case'.
This principle has been followed in the case of Lal Bhagwant Singh v. Sri Kishen Das, : 4SCR559 and Binayak Swain v. Ramesh Chandra, : 3SCR24 . The ratio of these authorities is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party for which he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interests of justice of the case'. These authorities are a complete answer to the technical objection raised by Mr. Verlekar. It is patent from the facts placed on the record that the appellate has no manner of right to retain Rs. 2,200/- which were deposited by the respondent from time to time and withdrawn by the appellant in view of the specific order made by the learned Assistant Judge.
9. Even if it be held, accepting the line of reasoning of Mr. Verlekar, that an application under Section 144 would not lie, still such powers could be exercised by the Court under Section 151 of the Code of Civil Procedure. It s needless to refer to the numerous authorities which lay down the proposition that the power of a Court to grant restitution is not confined to the cases covered by the provisions of Section 144, Civil P. C. it extends also to cases which do not come strictly within this section. The reason is that a Court has an inherent power under Section 151 irrespective of this section to order restitution. While dealing with and defining the ambit of Section 151, Civil P. C. their Lordships of the Supreme Court have pointed out in Manoharlal v. Rai Bahadur Rao Raja Seth Hiralal, : AIR1962SC527 that 'Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court by virtue of duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code'. Therefore, even if for a moment one were to accept the contention of Mr. Verlekar, on the facts it is difficult to sustain his submissions. Such powers could be exercised under Section 151; but to this extent I need not go as the learned Assistant Judge's order is quite explicit on the face of it.
10. This take me on to the next point as to the nature and scope of an application under Section 144 of the Civil P. C., whether it is for all intents and purposes an application for execution of the decree or something else: but I do not think it necessary to dilate on this point as it is concluded by a couple of authorities of our High Court and of the Supreme Court. This Court has taken the view, in Kurgodigauda v. Ningangauda, ILR 41 Bom 625 =AIR 1917 Bom 210 and Hamidalli Kadamalli v. Ahmadalli Mhibuballi, AIR 1921 Bom 67, that the proceedings under Section 144 are proceedings in execution. In Section 144 are proceedings inexecution. In the recent pronouncement of the Supreme Court in Mahijibhai v. Manibhai, : 2SCR436 it has been observed that the application under Section 144 could be treated as an application for execution of a decree. This has been pointed out with reference to the history of the various provisions and their effect. The party who has lost the property is entitled to the relief of restitution because the appellate decree enables him to obtain that relief either expressly or by necessary implication. He is recovering the fruits of the appellate decree and is claiming nothing more. The same principle has ben reiterated in Magbool Alam khan v. Mst. Khodaija, : 3SCR479 . Therefore, those tow authorities are a sound answer to the next contention raised by Mr. Verlekar before me that the learned District Judge was not substitution as an application on execution or an execution petition. As a matter of fact the authorities consistently point out that by whatever name they are called, all these application are virtually in the nature of execution proceedings. Therefore, I find little substance in the next contention. The learned District Judge, to my mind, was not justified in treating the original application which was filed under Section 144 of the Civil P. C. and which were perfectly tenable, as an execution petitioner in converting the regular appeal before him into a miscellaneous appeal. But that makes no difference to the merits of the case.
11. Adopting the reasoning of the learned District Judge Mr. Verlekar for the appellant tried to defeat the claim of the respondent on a technical ground in contending before me that if the application is treated to be an application in execution, then it should specify the mode of the execution of the decree as required by Rule 11, Order XXI of the Civil P. C. In the entire petition made for the refund of this amount, nowhere the mode is referred to nor was any attempt made before the learned District Judge when the appeal was being argued and when the learned District Judge indicated that it could be treated as an execution petition. At least at that stage the mode of execution viz, the relief sought ought to have ben specified. In the absence of these details , the application will have to be rejected. In support of such a line of reasoning he relied upon the rulings in Shekaramchand v. Ghelabhai, ILR (1895) 19 Bom 34 and Harakchand v. Khetdan, . The first case was under the old Code and it arose out of execution proceedings. The plaintiff who had obtained a decree against the defendants, the managing trustees of a Hindu temple plied for execution of that decree and filed a darkest praying that the defendants be ordered to act as directed by the decree, and that, if they failed to do so, steps be taken according to law. On these singular facts Their Lordships, with reference to the provisions contained in Section 235, clause (j) which corresponds to Rule 11 of Order XXI, held that the darkhast was not in accordance with Section 235(j) as it did not specify the mode in which the assistance of the Court was sought; therefore, it should be thrown out. Somewhat similar reasoning has been adopted by the Rajasthan High Court in the case referred to above. The decree-holder had obtained a money decree for Rs. 4,000/- and odd against one Sameldan. On his death execution proceedings were taken out against his son Khetdan (the respondent before the High Court ) and the arrears were claimed, but it appears from the statement of facts that the decree-holders did not set out in execution proceedings the mode in which the assistance of the Court was required. In simple words, they did not pore that the amount be recovered by either attachment and sale of the movable or immovable or detention in civil prison etc. Another point taken was the bar of limitation which seems to have weighed with His Lordship Modi, J. who decided the case. No doubt, in passing he has referred to this alternative contention of the application being a in law inasmuch as it failed to set out the mode of execution. In this contort he referred to the provisions contained in Rules 11 to 14 of Order XXI and pointed out that Rule 11 (2) lays down the particulars which every application for execution of a decree must contain, and among these particulars, attentions particularly required to be drawn to clause (j) of the rule which requires that the mode in which the assistance of the Court is required should be stated. In other words the decreeholder must state which of the five modes k mentioned in that clause he wishes to invoke for purposes of execution. If there be many failure on the part of the applicant to comply with the provisions, then the applicant may be allowed to remedy the defect or to with draw the application with livery to file a fresh one.
12. Now, Order XXI, Rule 11 of the Civil P. C. deals with the application for execution and the particulars to be specified there in. Clause (j) of sub-clause (2) inter alia lays down that the mode in which the assistance of the Court is required should be stated and the applicant should make it clear whether the seeks the assistance of the Court by the delivery of any property specifically decreed; by the attachment and sale of any property; by the arrest and detention in prison of any person; by the appointment of a receiver, or otherwide, as the nature of the relief granted may require. Rules 12, 13 and 14 call upon the decree-holder to annexes to the application an inventory of the property sought to be attached but which is not in the possession of the judgment debtor, and to give the description of the immovable property if it is intended to be pursued. Rule 14 further a says that certified extracts from the Collector' s register in certain cases should be annexed. No doubt, prima facie there may seem to be some substance in the argument of Mr. Verlekar, but the questions whether in view of the Supreme Court pronouncements which treat the application fro restitution's execution proceedings and which do not prescribe any from as such, the application should be thrown out on this technical ground. Secondly, it will have to be considered whether taking the argument at its face value, the case could be said to be covered by sub-clause (j) (v) of Rule 11(2) reproduced above.
13. The answer to this poser would be two-fold. In the first instance, when the application for restitution does not prescribe any specific from, a prayer simplicities for the recovery of the property lost to the applicant is an adequate compliance and that is what has exactly k happened in the instant case. Next, it is worthy to note that it is only when regular execution proceedings are taken out under Order XXI, Rule 11 comes into play. No doubt the learned District Judge, with whom I have disagreed with respects, proceeded on the basis that he could treat the original application as an application in execution or look upon the original application as a darkhast, but has rightly pointed out that technicality should not prove impediments in granting such reliefs. In the alternative it was submitted by Mr. Gangakhedkar for the respondent that his case would be governed by the 5th mode enumerated in sub-clause (j). I am afraid, it would be a far-fetched interpretation. No doubt, it is somewhat omnipotent and the decree-holder can seek assistance of the Court by simply saying that assistances should be granted ass the nature of the relief would require, but he has to specify something in making such a request. He has further pointed out that when the District Judge proceed to make this order, it does become an executable decree of the Civil Court and he may attempt to take this order with the process server to the doors of the appellant (judgment-debtor). If he pays the dues, he would be relieved of further steps. If he does not do so, he can treat the learned District Judge's order as a decree and may execute it in the regular manner contemplated by Order XXI. The latter part of his submission seems to be right and I do not think it would be proper at this stage to dismiss the entire claim of the petitioner which is perfectly just and equitable. The orders made in restitution proceedings are decrees within the meaning of Section 2 clause (2) of the Civil P. C. and even on the bare passing of such a decree in a given case the judgment -debtor may choose to obey the same and an application to take further execution proceedings may not arise. If he does not prefer to adopt such a measure, it would be still open to the applicant to execute this order as a decree by resorting to the provisions of Order XXI of the Civil P. C. The doors of execution would k be open to him till they are closed by the law of limitation. For these reasons, although on different grounds, I am disposed to dismiss the appeal.
14. In the result the appeal fails and is dismissed with costs.
15. Appeal dismissed.