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Padma Gowda Vs. Yuvaraja Hegde - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 219 of 1959
Judge
Reported inAIR1960Kant337; AIR1960Mys337; ILR1960KAR935
ActsMadras Village Courts Act - Sections 66 and 73; Code of Civil Procedure (CPC), 1908 - Sections 144
AppellantPadma Gowda
RespondentYuvaraja Hegde
Excerpt:
.....that the well accepted rule that a court has in inherent jurisdiction apart from the provisions of s. , to order restitution is so well established and so well settled that mr. , it was clearly competent for the district munsiff of puttur to order restitution in the exercise of his in inherent jurisdiction apart from the provisions of s......respondent presented a revision petition under section 73 of the madras village courts act, to the district munsiff of puttur. that revision petition was allowed and the decree made by the panchayat court was set aside. meanwhile, in s. e. p. 268 of 1958, in the court of the district munsiff to whom the decree had been transmitted for execution, the decretal amount was recovered from the respondent.(2) when the proceedings went back to the court of the village panchayat as a result of the order made by the district munsiff in revision, the petitioner made a statement to the panchayat court that he would not press his suit which was accordingly dismissed.(3) after the reversal of the decree of the panchayat court by the district munsiff the respondent made an application under s. 144 of.....
Judgment:
ORDER

(1) The petitioner instituted Civil Suit No. 3 of 1956 in the Kabaka Panchayat Court in the District of South Kanara, against the respondent and obtained a decree against him for a sum of Rs. 85-4-0. Against that decree, the respondent presented a revision petition under section 73 of the Madras Village Courts Act, to the District Munsiff of Puttur. That revision petition was allowed and the decree made by the Panchayat Court was set aside. Meanwhile, in S. E. P. 268 of 1958, in the Court of the District Munsiff to whom the decree had been transmitted for execution, the decretal amount was recovered from the respondent.

(2) When the proceedings went back to the Court of the Village Panchayat as a result of the order made by the District Munsiff in revision, the petitioner made a statement to the panchayat Court that he would not press his suit which was accordingly dismissed.

(3) After the reversal of the decree of the panchayat Court by the District Munsiff the respondent made an application under S. 144 of the Code of Civil Procedure, to the District Munsiff for restitution. The petitioner contended that the application under S. 144 of the C.P.C., was not maintainable. By an extremely perfunctory order, the District Munsiff overruled that objection, without stating any reasons supporting his conclusion that the objection had to be overruled.

(4) In this revision petition which is presented against the order made by the District Munsiff, Mr. Ullal has strenuously contended that the provisions of S. 144 of the C.P.C., were totally inapplicable to the claim for restitution made by restitution proceedings are not in the nature of execution proceedings and that the District Munsiff to whom a decree may be transmitted for execution under the provisions of S. 73 of the madras Village Courts Act, was not a Court but a mere persona designata. That being so, Mr. Ullal urged that the well accepted rule that a Court has in inherent jurisdiction apart from the provisions of S. 144 of the C. P. C, to place the parties in the position which they would have occupied but for the decree which has subsequently been varied or reversed, was inapplicable to the facts of the present case.

(5) There is a conflict of views in regard to the question as to whether an application for restitution under S. 144 of the C.P.C., is or is not in the nature of an execution application. That question, in my opinion, does not really arise for decision in this case nor is it necessary for me to express any opinion on the question whether the District Munsiff referred to in the S. 66 of the Madras Village courts Act is a persons designata or whether the reference to the District Munsiff in that section is really a reference to the Court of the District Munsiff.

(6) Section 66 of the Act provide, for the transmission of a decree made by a village Court to the District Munsiff. Under the provisions of clause (a) of sub-section (1) of that section, the District Munsiff, to whom the decree is so transmitted, has the power to execute the decree as if it were a decree passed by himself.

(7) It was suggested on behalf of the petitioner by his learned advocate Mr. Ullal that if the transmission of the decree under the provisions of S. 66 of the Madras Village Courts Act had been made to the District Munsiff's Court, it might perhaps have been competent for that Court, in the exercise of its in inherent jurisdiction, to order restitution when a decree executed by it had been varied or reversed by an appellate or revisional Court. According to the argument, the District Munsiff to whom a decree is transmitted under the provisions of S. 66 of the Madras Village Courts Act was however a persona designata and not a Court.

(8) This argument would have had relevance if it had been possible for me to accept the contention of Mr. Ullal that the in inherent power which may be exercised for placing the parties in the position which they would have occupied but for the decree which has been subsequently varied or reversed could be exercised only by a court and not by a persona designata, although he has been statutorily entrusted with the performance of duties similar to those exercisable by a Court of law.

(9) Now, the principle that a Court has it inherent jurisdiction apart from the provisions of S. 144 of the C.P.C., to order restitution is so well established and so well settled that Mr. Ullal did not dispute its correctness. But, as I have mentioned, his contention was that that in inherent jurisdiction was exercisable only by a court and not by a persona designata.

(10) In Jai Berham v. Kedar Nath Marwari, AIR 1922 PC 269, their Lordships of the Privy Council observed:

'It is the duty of the Court under S. 144 of the C.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 in inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved. As was said by Cairns, L. C. in Rodger v. Comptoir D'Escompte de Paris (1871) 3 PC 465, one of the first and highest duties of all Courts 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 upto the highest court which finally disposes of the case.'

(11) It is true, that their Lordships of the Privy Council in the aforesaid part of their decision referred to a Court and to the powers exercisable by a Court. But, it is not easy to understand why the power so exercisable by a Court is not exercisable by a person designata, entrusted with duties and powers which are normally performed and exercised by a Court of Law. If in the one case, it is the duty of the court to take care that the act of the Court does no injury to any of the suitors, it is, I think, one of the first and highest duties of even a persona designata to take care that his act does no injury to any such suitor.

(12) In that view of the matter, even if the District Munsiff of Puttur to whom the decree was transferred under S. 66 of the Village Courts Act could be regarded as a person designata, it cannot be said that he has no power to order restitution after the reversal of the decree which had been previously executed by him.

(13) Mr. Ullal contended that if the provisions of S. 144 of the C.P.C., are strictly construed, the application for restitution by the respondent in this case should have been made to the Court of First instance referred to in that section, which according to Mr. Ullal, was the Village Court and not the District Munsiff of Puttur. But it appears to me that, although the respondent in this case presented his application under the provisions of S. 144 of the C.P.C., it was clearly competent for the District Munsiff of Puttur to order restitution in the exercise of his in inherent jurisdiction apart from the provisions of S. 144.

(14) In the view that I take, the only order that can be made in this revision petition is to dismiss it, and I order accordingly, although I make no order as to costs.

(15) Revision dismissed.


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