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Mangilal Kajodimal Vs. Shankar Shravan Nikam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 86 of 1954
Judge
Reported in(1956)58BOMLR107
AppellantMangilal Kajodimal
RespondentShankar Shravan Nikam
DispositionApplication dismissed
Excerpt:
.....may, at best, indicate that legislature may provide for an appeal even against all restitution orders passed under section 151. bu what legislature may do cannot be attempted to be done by courts on the ground that the claims of equity and fairness would be met by allowing an appeal against such orders of restitution. but even in respect of these appeals there are two provisions that determine the question as to whether a given order is appealable or not, section 104 of the code deals with orders from which appeals lie and the rules under order xliii supplement the provisions contained in section 104. it is clear that the rules under order xliii as well as the provisions of section 104 do not justify the argument that an order for restitution passed under section 151 is appealable as..........fairness. as the definition of the word 'decree' indicates, but for the inclusion of restitution orders passed under section 144 within the definition of the word'decree,' no appeal would have been competent even against the said orders of restitution. it is clear that an order for restitution even under section 144 is not passed in regard to any of the matters in controversy in the suit. it is after the suit is finally determined that the provisions of section 144 can be, and are, invoked, so that within the definition of the word 'decree' an order of restitution passed under section 144 would not have been included. that is why in defining the word 'decree' legislature has included specifically orders made under section 144. it seems to me that it would be difficult to accede to the.....
Judgment:

Gajendragadkar, J.

1.This revisional application raises a short and interesting question of law. An order for restitution had been passed against the petitioner by the learned Civil Judge, Junior Division, Jalgaon. The petitioner preferred an appeal against this order in the. Court of the learned District Judge at Jalgaon. The appellate Court has dismissed his appeal on the ground that the appeal is not competent inasmuch as the order of restitution challenged by the petitioner had been passed, not under Section 144, but under Section 151 of the Code of Civil Procedure. That is how the question which has been raised by Mr. Bengeri in the present revisional application before me is whether an appeal lies against an order of restitution passed under Section 151 of the Code. On this question a' sharp difference of opinion has been expressed in judicial decisions and Mr. Bengeri has contended that the view taken in support of the competence of the appeal is more in consonance with justice and equity and he has pressed me to adopt that view.

2. It would be convenient to mention a few material facts leading to the order of restitution under revision. A partnership firm named Nandurdikar and Co. of Jalgaon sued Shankar Nikam for possession of a motor truck and for an account of hire due from him. It was alleged by the plaintiff firm that the truck belonged to the partnership and had been given to Nikam under a hire-purchase agreement, Nikam had failed to comply with the terms of the agreement and had committed defaults in the payment of hire due from him. That was the basis for the claim for the recovery of the truck and for accounts. Pending this suit, an application was made by the plaintiff firm requesting the learned Judge to direct that the truck should be delivered over to the firm on the firm's undertaking to produce the truck if called upon to do so by the learned Judge and on the firm's further undertaking to keep an account of the earnings made by the firm on this truck. On April 13, 1942, the learned Judge granted the application made by the plaintiff firm and the truck was delivered into the possession of the plaintiff firm. Ultimately the suit was dismissed on July 27, 1944. I should have stated that, after the defendant appeared in the suit, hehad made a counter-claim against the firm. This counter-claim also was dismissed by the trial Court. The decisions of the trial Court gave rise to two appeals by the plaintiff and the defendant (Appeals Nos. 241 and 251 of 1944 respectively). Both these appeals were, however, dismissed. On April 26, 1947, the defendant applied for restitution of the truck and asked for accounts to be made in respect of the profits earned by the plaintiff on the strength of this truck. Unfortunately, when the suit was dismissed and even at the time when the appeals were ultimately disposed of by the District Court, no order was passed in respect of the truck which had been delivered over to the plaintiff pending the suit. That is why the defendant had to make a separate application for restitution as late as April 26, 1947. The learned Judge found that the claim for restitution would not be justified within the terms of Section 144 of the Code. He, however, held that this was a claim which should, and could, be entertained under the inherent jurisdiction of the Court under Section 151. On this view, the learned Judge allowed the defendant's claim for restitution and directed that the plaintiff firm should pay the defendantRs. 15,583-84. This amount includes the value of the truck and the amount of profit earned by the plaintiff by means of this truck during the period the truck was in the plaintiff's possession as a result of the order passed by the trial Court on April 13, 1942. It is against this order that the plaintiff preferred an appeal to the District Court and the learned District Judge dismissed the appeal on the ground that an appeal against an order of restitution passed under Section 151 is incompetent.

3. It is not disputed before me that the order of restitution under revision has been passed, not under Section 144, but under Section 151 of the Code. It is well established that the power of the Court to grant relief by way of restitution is not confined to the provisions of Section 144 of the Code. A civil Court has inherent jurisdiction to grant restitution even in cases that do not fall within the letter of the provisions of Section 144. In Jai Berham v. Kedar Nath Marwari (1922) L.R. 49 I.A.351 : S.C. 25 Bom. L.R. 643, their Lordships of the Privy Council have emphasized the fact that it is the duty of the Court under Section 144 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, and they have added that it is not as if this duty or jurisdiction arises merely under the provisions of Section 144..It is inherent in the general jurisdiction of the Court', said their Lordships, 'to act rightly and fairly according to the eireumstanees towards all parties involved. (p. 355)

Thus the trial Court was justified in entertaining the present application for restitution under Section 151 of the Code.

4. Now, an order passed under Section 144 of the Code is appealable. It is appealable because it is artificially included ill the definition of the word 'decree' contained in Section 2, Sub-section (2), of the Code, The question which falls for decision in the present re-visional application is: Can it be said that an order of restitution which has been passed under Section 151, and which in substance resembles an order that can be passed under Section 144, can be regarded as a decrree within the meaning of Section 2, Sub-section (2) of the Code Section 2, Sub-section (2), which defines a decree, provides that 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit; and it goes on to add that the decree may be either preliminary or final. Then the definition adds that the word 'decree' shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or s. 144. Since an order passed under Section 144 is a decree within the meaning of Section 2, Sub-section (2), an appeal lies against every such order by virtue of the provisions contained in Section 96 of the Code. The argument is that the effect of the order of restitution passed under Section 151 is indistinguishable from the effect of the order of restitution passed under Section 144, the basis for making both kinds of orders of restitution is the same and the object intended to be achieved by passing the said orders is also the same, and so, like the order for restitution passed under Section 144, the order for restitution passed under Section 151 should be held to amount to a decree within the meaning of Section 2, Sub-section (2), and an appeal againstsuch an order should be held to be competent under a. 96 of the Code.

5. In dealing with the question as to whether an appeal lies against any order of adjudication, it is necessary to remember that there is no inherent right of appeal. The right to appeal is the creature of a statute, and unless the right to prefer an appeal against any specific order of adjudication is expressly provided by the statute it would not be possible to recognise or carve out any such right on grounds of justice, equity or fairness. As the definition of the word 'decree' indicates, but for the inclusion of restitution orders passed under Section 144 within the definition of the word'decree,' no appeal would have been competent even against the said orders of restitution. It is clear that an order for restitution even under Section 144 is not passed in regard to any of the matters in controversy in the suit. It is after the suit is finally determined that the provisions of Section 144 can be, and are, invoked, so that within the definition of the word 'decree' an order of restitution passed under Section 144 would not have been included. That is why in defining the word 'decree' Legislature has included specifically orders made under Section 144. It seems to me that it would be difficult to accede to the argument that an appeal should be regarded as competent against orders of restitution passed under Section 151 on the ground that orders of restitution of this kind are in substance similar to the orders of restitution passed under Section 144. The argument based on the similarity of the orders may be logical. It may also be true that, if the Court exercises its inherent jurisdiction in favour of a party claiming restitution even though the claim does not fall within the four corners of Section 144, it would be just and fair that a party aggrieved by an order of restitution passed under Section 151 should have an opportunity to challenge that order by preferring an appeal against that order. But considerations of logic and of equity and justice cannot, in my opinion, have an effective voice in deciding the question as to whether an appeal lies against any particular order, once it is remembered that the right to prefer an appeal is the creation of a statute. All arguments of logic and fairplay may, at best, indicate that Legislature may provide for an appeal even against all restitution orders passed under Section 151. Bu what Legislature may do cannot be attempted to be done by Courts on the ground that the claims of equity and fairness would be met by allowing an appeal against such orders of restitution. An order for restitution passed under Section 151 has not been included within the definition of the word 'decree' under Section 2, Sub-section (2), and so it must be held that such an order is not a decree within the meaning of the said section and as such no appeal can lie against such an order under Section 96 of the Code. The Code allows appeals against orders. But even in respect of these appeals there are two provisions that determine the question as to whether a given order is appealable or not, Section 104 of the Code deals with orders from which appeals lie and the rules under Order XLIII supplement the provisions contained in Section 104. It is clear that the rules under Order XLIII as well as the provisions of Section 104 do not justify the argument that an order for restitution passed under Section 151 is appealable as an order. Incidentally it may be pointed out that prima facie the exercise of inherent jurisdiction by the trial Court is not intended to be subject to supervision by the appellate Court. As the provisions contained in Sections 151, 152 and 153 suggest, powers which can be generally described as inherent powers are expected to be exercised by Courts sparingly and with due circumspection, and normally orders made by trial Courts in the exercise of these inherent powers are not subject to appeal. But apart from this consideration, unless an order for restitution passed under Section 151 amounts either to a decree or appears to be one of the orders against which an appeal has been preferred, it would not be possible to hold, on considerations of equity, justice or fairness, that an appeal can be entertained against such an order.

6. It is necessary to mention one point in considering this question apart from authorities. If an order for restitution has been passed between persons who were parties to a suit, and it is possible to take the view that the said order for restitution falls within the purview of Section 47 of the Code, the position may be different. In such a case, the order of restitution may have been passed under Section 151 and yet it may theoretically be possible to take the view that the order has relation to execution, discharge or satisfaction of the decree between the decree-holder and thejudgment-debor; and if that is so, the said order may perhaps be appealable under Section 47 itself: The present order cannot attract the provisions of Section 47 because the suit instituted by the plaintiff firm has been dismissed and the order of restitution has relation to the possession of the truck obtained by the plaintiff pending the suit by reason of the interim order passed by the trial Court in that behalf. Therefore, it is unnecessary for me to consider and decide whether an order for restitution which may be able to attract the provisions of Section 47 of the Code would be appealable or not.

7. In my opinion, therefore, the order of restitution passed by the trial Court in the present proceedings has been passed under Section 151 of the Code and an appeal to the District Court against this order was clearly incompetent.

8. I may refer to the judicial decisions to which Mr. Bengeri for the petitioner has invited my attention. The decisions of the Nagpur and the Calcutta High Courts are in favour of the view for which Mr. Bengeri contends. In Mst. Champabai alias Krishnabai v. Shree Daulatram Sharma [1939] Nag. 350, it has been held by Sir Gilbert Stone C.J. and Digby J. that an appeal lies from an order of restitution made by an executing Court under its inherent powers. In his judgment, Digby J. readily conceded that because an order is passed under the inherent powers it does not necessarily become appealable. But he felt impressed by the view that the exercise of inherent powers is intended 'to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section', and so he thought that the Court, while using its inherent powers, was in effect acting as if the order was made under Section 144..In such a case', observed the learned Judge, 'even as justice demanded that one side should be given a remedy, restitution, as if Section 144 applied; so the other side should, as a matter of justice, be allowed the right to appeal that would have existed had Section 144 really applied instead of its being applied by means of a fiction. (p. 353)

With respect, I would like to point out that the considerations of justice which weighed with the learned Judges can be more appropriately invoked in a legislative chamber for the purpose of suggesting that Legislature should provide for an appeal against an order of restitution passed under the inherent jurisdiction of the Court. I apprehend that Courts would not be justified in creating a right of appeal by fiction because they feel impressed by the argument that the exercise of inherent jurisdiction under Section 151 really has the effect of applying the principles of Section 144 by means of a fiction. If it is remembered that the right to prefer an appeal is the creation of a statute, it would not be legitimate to carve out such a right or to recognise it on considerations of justice, equity or fairness.

9. In Gnanada Sundari v. Chandra Kumar : AIR1927Cal285 . Greaves and Mukerji JJ. have held that, where an order is made under the provisions of Section 151, but in fact in exercise, by analogy, of the jurisdiction under Section 144, an appeal does lie from the order. Greaves J., in coming to this conclusion, observed that (p. 286):.It certainly seems a crurious position that if the Court deals with the matter under Section 144, Civil P. C, an appeal lies whereas if the Court under Section 151 exercises the same jurisdiction which Section 144 gives him, but exercises that jurisdiction under Section 151 because Section 144 is not strictly applicable, no appeal lies.

and he thought that it would be a reasonable view to take that the order of restitution passed under Section 151 should be taken to be an order made under Section 144. With respect, I am unable to agree with the view thus expressed by Greaves J. On the other hand, in Usman Saheb v. Sivaramaraju : AIR1950Mad463 , F.B., a Full Bench of the Madras High Court has held that no appeal lies against an order of restitution passed under Section 151 of the Code. There appears to have been a conflict in the reported decisions of the Madras High Court on this point; but the said conflict has been resolved by the Full Bench in favour of the view that an appeal does not lie against an order of resitution under Section 151. The Allahabad, Lahore, Patna and Oudh Courts have also taken the same view, vide Allahabad Theaters Ltd., Allahabad v. Pandit Ram Sajiwan Misra [1949] All. 313, Ganesh Datta v. Model Town Society A.I.R. [1939] Lah. 508, Rameshwar Lal v. Ram Charan : AIR1938Pat447 , and Brij Mohan Singh v. Rameshar Singh A.I.R. [1939] Oudh 273. In regard to the decision of the Allahabad High Court, I may point out that on the facts it was held that the order for restitution in question had been made under Section 144 and so an appeal was treated as competent against the said order. But in dealing with the question of law as regards the competence of appeals against orders of restitution passed under Section 144 as well as under Section 151, Harishchandra J. has dissented from the view taken by the Calcutta and the Nagpur High Courts and has observed that an order for restitution passed under Section 151 was not appealable.

10. In the result, the revisional application fails and the rule is discharged with costs.


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