1. These two appeals are directed against two Identical orders passed by the District judge, Bangalore, on two applications in two different proceedings, one in Execution Case No. 52 of 1952-53 and the other In Miscellaneous Case No. 87 of 1952-53 tiled by the Respondent praying that the appellant be directed to refund the amount of Rs. 2,010/- withdrawn by him from the deposit in Court on 7-2-1955, on the ground that the order on the strength of which he had withdrawn the amount had been set aside In appeal. The learned District Judge has granted the petitions and directed the appellant to redeposit the amount within 15 days.
2. The facts necessary for the appreciation of the points in dispute are few and undisputed, one EA Read who was an employee in the Kolar Gold fields and was entitled to Rs. 7,588-3-0 towards his Provident Fund Contribution from the Undertaking, was indebted to the appellant Ratanchand as also to the Respondent Multanmur. Multanmull had taken a bond from Read On 1-2-952 creating a charge on his Provident Fund for Rs. 1,626-10-9 with interest. He instituted O.S. 114 of 1952-53 in the court of the Munsiff at Kolar for the recovery of the aforesaid amount with interest and costs and obtained a decree. Ratanchand also instituted O.S. 18 of 1952-53 in the District Court at Bangalore against Read for recovery of certain amounts and secured an order of attachment of the Provident Fund before judgment. Multanmull preferred a claim in Mis. Case No. 87 of 1952-53 in the Court if the Principal District Judge, Bangalore, against the order or attachment on the ground that he had a prior charge on the Provident Fund amount. His claim was allowed by the Court on 19-1-1953 declaring that the attachment shall continue subject to the charge created in 0. Section 114 or 1952-53 in favour of Multanmuil. Ratanchand then instituted O.S. 15 of 1954 in the Court of the Munsiff at Kolar Gold Fields for setting aside the order passed by the district Judge in Mis. Case No. 87 of 1952-53 and obtained a decree; in the strength of that decree, he withdrew the entire amount of the Provident Fund including the portion in respect of which Multanmull had been declared to have had a charge under his decree. Multanmull preferred an speak as Regular Appeal No. 186 of 1954 in the court of the Subordinate Judge, Kolar and succeeded in getting a decree in his favour on 20-1-1956. Ratanchand preterrea a Second Appeal against Multanmull In Section A. 299 of 1956 and obtained a stay order. The appeal was summarily Dismissed on 6-12-1956. Thereafter, Multanmull filed two petitions in the Court of the Principal District Judge. Bangalore, against Ratanchand on 2-12-1959 under Sections 144 and 151 of the Code of Civil Procedure praying for an order directing Ratanchand to redeposit the amount drawn by him from the Court
3. These applications were opposed by Ratanchand on the ground that Multanmull was not a party either to the suit or to the execution proceedings in which he hadwithdrawn the amount and was not therefore entitled to me the petition for refund. He also pleaded that the petitions were barred by time.
4. The learned District Judge held that the application for restitution was tenable as the expression'any party entitled to any benefit by way of restitution or otherwise'occurring in Section 144 of the Code of Civil Procedure included the petitioner and that the petition filed, by him within three years from the date of dismissal of the Second Appeal was well in time. He accordingly directed the appellant to redeposit the amount.
5. In the appeal, the first question that was submitted for our consideration is that Multanmull Should have filed his application for restitution in the Court of the Munsif, Kolar Gold Fields as that Court is 'the Court of the first instance' contemplated by Section 144 of the Code 01 civil Procedure. Section 144(1) reads thus:
'Where and in so far as a decree or an order 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 fie made, as will, so tar as may be, place the parties in the position which they would have occupied but for such decree or order 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.'
The expression 'the Court of first instance' occurring in this Section has not been defined in the Code and it cannot certainly be equated with the expression 'the Court of the lowest grade' occurring in Section 16 of the Cone which prescribes the Rule.of procedure for institution or a suit. The expression is obviously distinguishable from the expressions 'trial court' and 'executing court' which are indicative of the function of the Court. So giving the words contained in the expression their normal meaning and bearing in mind the object of Section 141, it will have to be interpreted as meaning the Court which can effectively give the relief by way of restitution to the party making the application; such a court need not in all cases be identical with the 'trial Court' since the Court which made the payment or delivered the property may be some other Court. In the present case, the Munsiff's court Kolar Gold Fields which gave the appellant a declaratory decree is not the Court which ordered the payment of the attached Provident Fund to the appellant's it is the District Court which decreed the appellant's suit against Read and in which the entire amount of the Provident Fund had been deposited, that ordered the payment of the entire amount of Provident Fund against part of which Muttanmull had a decretal charge. It is, therefore, that Court alone which is competent to order restitution to Multanmuil. In this connection, reference may be made to a decision or the Travancore High Court in ithack Joseph v. Kainyani AIR 1954 Trav-Co. 390 in which it was laid down that-
'..... .The court of first instance mentioned inSection 114 really means the Court which is competent to set matters right by granting restitution in the 'manner and to the extent that is proper under the circumstances.'
The basic principle that no man shall suffer by a wrong or erroneous act of a Court forms the foundation of the inherent jurisdiction empowering every Court to set matters right by restoring the aggrieved party to the position which he would have occupied but for such wrongful or erroneous Act. It would therefore be clear that the 'court orfirst instance' contemplated by Section 144 is that Court which paid the amount or delivered the property into me possession of the person who by a subsequent decree or order of a competent Court is found to be not entitled to the same and it is only such Court that can set matters right. In this view of the legal position, the respondent could not have filed his application under Section 144 in the Court of the Munsiff, Kolar Gold Fields as that Court had not paid the amount to the appellant. We are, therefore, of opinion that the instant applications were rightly filed in the District Court at Bangalore.
6. The next question submitted for our consideration is one of limitation. Mr. Venkataramiah, the learned Advocate for the appellant, submitted that the learned District Judge had erred in holding the petition to be in time. The learned Judge has not expressly referred to any Article or limitation but the trend of his reasoning indicates that He was having in mind Article 182 of the Limitation Act. He has held the petition to be in time on the ground that it had been filed within three years from the date or dismissal of the Second Appeal. The submission of the learned counsel is that an application under Section 144 or Section 151 is governed by Article 181 and not by Article 182 of the Limitation Act. On this point, there is considerable divergence of judicial opinion.
7. Before referring to the decisions of the different High Courts on the question, it is necessary to find out, with reference to the provisions contained in Section 144, whether the proceeding for restitution is a proceeding in execution of a decree or a Miscellaneous proceeding, we may incidentally mention that the words 'or an order' were inserted in Section 144(1) of the Code by Section 13 of the Code of Civil Procedure (Amendment) Act, 1956 (central Act 66 of 1956) which came into force on 1-1-1957. Prior to the amendment, the Section in terms had been restricted in its operation to cases where parties became entitled to restitution as a result of variation or reversal of a decree. The amendment has enlarged the scope of Section 144 and it now covers cases where parties are entitled to restitution as a result of variations or reversal of an order passed by a Court. In the present case, the proceeding for restitution is based on the reversal of the decree in O. S. 15 or 1954 passed by the Court of the Munsiff, Kolar Gold fields, by the Court of the Subordinate Judge, Kolar in appeal against that decree.
8. A careful analysis of this Section (Section 144) will be very helpful in determining the nature of a proceeding;
(1) There should be a variation or reversal of a decree or an order under which a party has realized some benefit;
(2) Such variation or reversal should result in entitling a party to a benefit by way of restitution or otherwise;
(3) The effect of the order or restitution shall be such as to place the parties in the position which they would have occupied but for such decree or order which has been varied or reversed wholly or partially;
(4) In so restoring the parties to their original position, the power of the Court extends to passing an order including an order for refund of costs, payment of interest, damages, compensation or mesne profits; and lastly
(5) The order for refund or payment must be property consequential on such variation or reversal.
It would thus be manifest that an application for restitution is not a proceeding for enforcing directly a command or a direction contained in any decree or order but for obtaining an order restoring the parties to status quo ante as a consequence of the reversal or variation of a decreeor order under which one of the parties had obtained some benefit.
9. A decree as defined in Section 2(2) of the Code of Civil Procedure as a formal expression of an adjudication which conclusively determines the rights of parties in regard to all or any of the matters in controversy in the suit and is deemed to include 'the determination of any question within Section 47 or Section 144'. It, therefore, embodies the relief which is granted to a party in respect of his right to matters in controversy. In executing a decree, the Court merely gives effect by compelling the opposite party to obey the commands of the terms contained in the decree and gives effect to what is expressly contained therein; the executing Court cannot go behind the terms of the decree. In a petition for restitution what the Court is required to do is to find out, in the first instance, what the petitioner had lost in obeying the decree or the order which has been subsequently reversed or varied. It has to find out the effect of the reversal or variation on the rights of the decree-holder and the judgment-debtor. So, the process involved in an application for restitution is not one of execution of either of the two decrees or orders as such; it involves the working out of the combined effect of the two decrees or orders with a view to find out the relief to be granted to the petitioner in order to restore him to status quo ante. The relief to be granted is consequential on the variation or reversal of the earner decree or order. The fact that such relief does not directly spring from the decree or order varying or reversing the earlier order is clear from the fact that the claim for restitution arises only in cases where the earlier decree- or order has been executed and that decree or order has been subsequently set aside. In cases where the earlier decree or order is not executed, the question of restitution does not arise. It is, therefore, obvious that the relief of restitution is not either in pursuance of the command of the first decree or order, or of the decree or order varying or reversing the earlier order. The court has to determine by ascertaining what had happened between the passing of the earlier decree or order and its subsequent reversal or variation in appeal or other suitable proceeding. It has to find out what the rights of the applicant were on the date on which he was either dispossessed of his property or required to pay money or do something in obedience to the decree or order. Normally, the decree or order which gives rise to a claim for restitution does not expressely contain any direction or command for return of the money or property taken in execution of the earlier decree or order, since what takes place In an execution proceeding does not come up for consideration in the appeal or revision against the decree or order of the subordinate court, unless the appeal or revision itself is occasioned by an order passed in execution. In the stirct sense, the relief to be granted to a petitioner under Section 144 is independent to the decrees or orders concerned in the case; it requires an adjudication of the rights of the petitioner as they existed at the date of the reversed or varied decree and the order to be passed in such a proceeding is itself a decree as defined by, Section 2(2) of the code and can itself be enforced in execution.
10. The aforesaid discussion makes it abundantlyclear that an application under Section 144 of the code cannot be strictly regarded as a petition for execution of anydecree or order. As mentioned above, there is considerabledivergence of judicial opinion on this question and we nowproceed to refer to them briefly.
11. A study of the case law on the subject discloses hat the High Courts of Allahabad, Calcutta, Lahore, Nagpurand Punjab have taken the view that an application under Section 144 is not an application in execution of a decree. A full Bench, of the Allahabad High Court in Parameshwar Singh v. Sitaladin Dube : AIR1934All626 laid down that an application for restitution under Section 144 is not an application for execution of a decree within the meaning or Article 182 of the Limitation Act and that the Article does not apply to it. Sir Suiaiman, C. J. who recorded the opinion of the Full Bench exhaustively discussed all aspects of the question and laid down --
'A decree is supposed to be self contained and an executing Court merely executes the decree and carries our the directions contained in the decree and gives effect to the same. In the case of restitution there is no decree for the amount claimed by the applicant. An inquiry has to be made by the Court, evidence has to be taken and then an order passed under Section 144 calling upon to a opposite party to make restitution and refund amounts or pay costs interests and mesne profits, etc. Thus the proceeding relating to restitution entails an elaborate inquiry and an investigation into the facts, whereas the mere execution of a decree is more or less a mechanical process. While so laying down, his Lordship noted that the Legislature had drawn clear distinction between an order passed under Section 47 for the execution of a decree and an order passed under Section 144 Mr restitution by Including them distinctly under the definition of 'decree' and referred also to the fact that Section 47 had been included under the heading
'questions to be determined by a Court executing 3 decree,'
while Section 144 had been included In a separate pan under the heading 'Miscellaneous' on the ground that the proper place to refer to restitution would naturally be after the provisions for appeals, references, reviews and revisions had been laid down. His Lordship also commented on the unsuitability and in appropriateness of the form of application for execution of a decree under Order XXI Rule 11 for an application for restitution and the alterations effected In the provisions of Sections 583 and 244 of the Code 01 1882 by the substitution respectively of Sections 144 and 47 of the Code of 1908. The subsequent decisions 01 that High Court in Kalicharan Sainthwar v. Bankachand AIR 1947 All 172 and Vindhyachal Tewari v. Board of Revenue : AIR1956All663 have taken the same consisted view as regards the nature and the scope of Section 144 of the Code.
12. The decisions of the Calcutta High court nave uniformly laid down that application under Section 144 Code is not an, execution petition but that it is in the nature of a miscellaneous Judicial proceeding. It appears from the decision in Kiran Shashi Debi v. Chartdra Bhusan Man dal ILR 1951 (2) Cal 315, that para 880 of the Circular Rules and Orders of the Calcutta High Court expressly pro vines that an application under Section 144 of the code of Civil Procedure is to be treated as a miscellaneous judicial case. The decision of the Special Bench In Hari Mohan Dalai v. Parameshwar Sahu AIR 1928 Cal 616 (Se) and of a Division Bench in Birendra Nath v. surendra Kumar : AIR1940Cal260 have assumed that view to, be the settled law of that court In view of an earlier full Bench decision of that High Court In F. H. Pell v. Gregory : AIR1925Cal834 . It was laid down by the Full Bench that an application for restitution cannot be regarded a one for the enforcement of final judgment or decree. in the view of that High Court the proceedings for restitution while undoubtedly dependent upon the final result of the cult, are yet In a sense Independent of the proceedings inthe suit as new Issues which were not Issue In the suit. require adjudication for giving complete or adequate relief to the aggrieved party. Tne entire case law on the subject has been discussed in Taraknath Rai v. Pancnanan Banerji : AIR1937Cal152 , and the decision reached mere. In is that the Court granting restitution is not executing, a decree and such an application cannot, therefore, be regarded as an application for execution under Section 47 of the Code.
13. The Lahore High Court in Punjab National Bank Ltd. Delhi v. Firm Nanhe Mal Janki Das AIR 1939 Lah 73 followed the earlier decisions of that High Court In Ram Singh v. Sham Pershad AIR 1918 Lah 378, Chanda singh v. Bishen Singh, AIR 1924 Lah 166 and Gujarmal v. Marayan. Singh, AIR 1931 Lah 504 and came to the conclusion that the application for restitution under Section on 144 of the Code could not be regarded as an application to obtain execution. In pointing out the difference between an execution proceeding and an application of restitution under Section 141, their Lordships observing-
',.... Proceedings in execution merely carry. out the terms of the decree as they are and do not involve any further investigation for ascertaining the liability of the judgment-debtor. In the case of restitution, there is no decree for the relief claimed by the applicant-, the Appellate Court's decree, which merely reversed the first Court's decree, does not itself direct We restitution, of some property or the award of compensation or interest or mesne profits. Thus the proceeding relating to restitution entails an elaborate inquiry and an investigation into the facts. The powers exercisable by the Court differ. widely in the two cases.'
14. The same is the view of the Nagpur High Court as could be seen from the decision of a Division Bench in Shamrao Bhagwantrao v. Asaram Laxmandas (S) AlR 1956 Nag 129. Alter referring to the decisions of the other High Courts and quoting Section 144 of the Code-the conclusion recorded by this decision reads thus:
'It would appear from the above that what has to berestituted is the benefit taken by a party in execution of adecree which has subsequently been varied or reversed. Restitution, therefore, has nothing to do with the enforcementor execution of the subsequent decree and merely attacnesto the benefit taken under a decree which is no longer sub-sisting.
That is a matter which, at the most, can be said to be Incidental to the passing of the new decree but does not amount to its endorsement.
In fact, in proceedings under Section 144 a new decree or order springs up on adjudication of the rights of the parties and the necessary relief is given by executing that decree or order unless the appellate decree itself decided the point and directed restitution.'
15. Mention may also be made of the Full Bench decision of the Punjab High Court in Mela Ram v. Dharam Chand Amritlal (FB) in which, their Lora-ships fully agreed with the Full Bench decision of the Allahabad High Court referred to above and with the decision of the Calcutta High Court In : AIR1928Cal646 . and of the Nagpur High Court in Aliawali v. Kesnari-mal Ramlal AIR 1947 Nag 239. The distinction between an execution proceeding and an application for restoration was noticed in the following terms:
'..... In execution proceedings the executing court derives its authority only and solely from the terms of the decree or order sought to be executed and it mustconform to its terms. It must carry out the mandate and directions contained therein. To put it differently an executing Court cart only execute a decree or order according to its tenor and cannot travel beyond its terms. The right to restitution on the other hand arises when one obtains money or property of others without authority of law.
When a person unlawfully Inflicts loss or injury to any person, then he is liable to make reparation to the injured person. In olden times this word 'restitution' used to denote the return of a certain thing or condition but now Its meaning has been extended to include not only the restitution of the thing itself but also compensation for loss or injury caused to the party seeking restitution. This claim may arise In various ways, e. g., under a statute, under an implied contract or fort etc. This right is based on principles of natural justice- It is well established that when a decree Is executed through Court against a person during the independent by of the appeal, then in the case of variation or reversal of the decree by the appellate Court, he is entitled to restitution of what he has been deprived by the endorsement of that decree.
This right is inherent in Courts of law and it is this right that has been given statutory recognition by Section 141 of the Code of Civil Procedure. The right of restitution to Section 144, Civil Procedure Code, is only one species of the same genus. xxxxx. It is, therefore, clear that the right to enforce a judgment by -the process of execution Is essentially different from the right to restitution under Section 144, civil Procedure Code. If a decree o! reversal is sought to be executed, then the successful party will get nothing, as according to Its terms and tenor there Is no mandate or direction TO restore any property taken from him in execution of the trial court's decree. The basic principles on which these two rights are based are different.'
We have already mentioned that there is considerable divergence of judicial opinion on the subject. The other view that a petition under Section 144 of the Code is in the nature of an execution petition is favoured by the High Courts of Bombay, Madras and Oudh. This view firstly derives substantial inspiration from the decision to the Judicial Committee of the Privy Council in Prag Narain v. Kamanma Singh, ILR 31 All 551 (PC) and secondly on a very liberal construction of Section 144. This decision of the privy Council has been discussed in detail in the Full Bench decision of the Allahabad High Court in Parmeshwar Slngh's case : AIR1934All626 referred to above. In our opinion, it is sufficient to indicate that the aforesaid decision concerned Itself with Section 583 of the Code of 1882 and cannot, with due respect, be accepted as an authority on the Interpretation of Section 144 which is so different in its wording. Section 583 ran 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, he shall apply to the Court which passed the decree against which the appeal was preferred; and such court shall proceed to execute the decree passed In appeal, according to the rules hereinbefore prescribed for the execution of decrees In suits.'
The expressions underlined- (here into ' ') oy us leno support to the view that under the old Cone an application under Section 583 was an application in the nature of execution, in that case their Lordships did not deal with the question whether the relief of restitution was In substance a relief which can be granted in execution. They overruled the contention that the relief of restitution could not be obtained byfiling an application for execution; they further repelled the contention that a separate suit was necessary, in the opinion of their Lordships the combined effect of sections 583 and Z44, which correspond respectively to Sections 144 and 47 was to dispense with the need for a separate suit to obtain restitution on the variation or reversal of a decree. The Legislature has given effect to this view by enacting Sub-section (2) of Section 144 which provides that
'No suit shall be instituted for the purpose of obtaining any restitution or of her relief which would be obtained by an application under Sub-section (1).'
As regards the second reason relating to the liberal construction of Section 144, it is sufficient to observe, with respect, that in our opinion the material alterations effects. by the Code of 1903 in the relevant provisions of the Code seem to obviate the need for liberal construction to do Justice to an aggrieved party.
16. The decisions of the Bombay High court in Ganpat Gatlu v. Navnitial Ranchhodaas AIR 1940 Bom 30 and Hamidalli Kadamalii v. Anmadam AIR 1921 Eom 67 do not contain any discussion on the subject, as in the opinion of their Lordships the earlier decision of that High Court in Kurgodigauda Llngangauda v. Ningangouda Ningangouda AIR 1917 Bom 210 was binding upon them. In me-latter decision, the main question was as regards the application of the Article of limitation and of the benefit of Section 6 of the Indian Limitation Act to an application under Section 144 of the Code, in discussing the points as issue, their Lordships laid down.
'How an application for restitution according to the. provisions of Section 144 of the Code, is to be matte to the. Court of first instance whose decree is varied or reversed and in that respect it differs from application for execution under Part 11 of the Code, xx xx xx xx'.,
Then their Lordships quoted Section 38 and proceeded--
'Nevertheless it appears to us that an order made under Section 144 is an order in execution of a secret of the appellate Court. The section provides that
'the Court may make any order, including, orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which and properly conse quential on such variation or reversal1.
and it is made clear by the second clause of the section that the relief allowed, as in execution matters, can only be allowed by application under the Code and not by a separate suit.
We are therefore of opinion that the lower Court was right in holding that the application was 'virtually' an application for the execution of the High Court decree amending the decree of the Dharwar Court.' (The underlining there into-'') is ours). From this passage it appears to us that while' recognizing that an application under Section 144 differed from-an application for execution under Part II of the Code, their Lordships felt that the application was virtually an application for execution.
17. A Division Bench of the Madras High court in Somasundaram Pillai v. Chokkaimga Pillai, ILR 40 Mad 780. (AIR 1917 Mad 185) took the view that an application for restitution Is an application in execution under the new Code of Civil Procedure of 1908 as under the old code' of 188Z. In considering the contention that an application for restitution is not an application for execution Seshagir Ayyar J. who spoke for We Bench laid down.
'We are unable to see the difference, Section 144 07 successful present Code has been so framed as to enable the successful party In the Appellate Court to be placed ItStatus Quo Ante. The language of Section 583 of the oldCode was not wide enough to cover all cases of benefitsarising from the reversal of a decree being fully realized by the successful party. Apart from this change, we seeno ground for holding that the Legislature intended to make any departure in the procedure by which restitution is to be obtained. Under the old Code, restitution was by way of execution; see ILR 31 All 551 (W). The samerule applies to similar applications under the new Cone. The language of Section 47 of the Code would cover ancases of restitution. the party seeking the aid of the Court is agitating a question relating to the execution of the decree under which the other party deprived him ofhis property.'
With respect, there can be hardly any difference of opinion that the relief under Section 144 of the Code, speakingvery Broadly, is in the nature of a proceeding to obtain an executable decree for the relief which a party has become entitled to as a result of the variation or reversal of a decree or order of the lower Court, if it was the intention of the Code that Section 47 was intended to cover aneases of restitution, there was no need to add separate provisions under Section 144. This decision was followedby Wallace J. in Pancapakasa Ayyar v. Natesa pattar AIR 1926 Mad 813 and by Abdur Rahman J. in Krishnamachan v. Chengalraya Naidu : AIR1940Mad281 . It may be mentioned that the main question in the latter case for the decision of the High Court was as regards the applicability of Article 182 of the Indian Limitation Act.
18. So far as the Oudh High Court is concerned, the view taken is expressed briefly in the decision in Birendra Bikram v. Basdeo AIR 1935 Oudh 185.
'.,... .Although there is a conflict of (SIC) amongst the High Courts in this country as to whether a proceeding under Section 144, Civil Procedure Code, is or is not a proceeding in execution, the view which has pre--vailed in this Court is that an application under Section 144, Civil Procedure Code, being in substance one made for seeking the aid of the Court in working out the final decree should be regarded as an application for execution of me decree passed in Appeal, Chandrika Singh v. Bithal Das, ILR 6 Lucknow 418 : (AIR 1931 Oudh 51) xx xx xx.'
19. We might incidentally indicate that the men Court of Patna has expressed conflicting views in two Fun Bench decisions, one in Balmukund Marwari v. Basanta Kumari AIR 1925 Pat I (FB) and Bhaunath Singh v. KedarMath Singh, AIR 1934 Pat 246(2) (FB).
20. For the reasons above recorded, we are of the opinion that an application for the relief of restitution is not an application for execution of the appellate Decree or order but is an application praying to the Court to adjudicate upon the rights of parties to the petition and to grant a decree to the aggrieved party embodying the benefit that he is found entitled to under the context 01the decree or order already executed and the same having been subsequently varied or reversed. This view is consistent with the ratio of the unreported decision of this High Court in Mohamed Iqbal v. Haji Mohamed, R.a. no. 64 of 1960 (Mys) in which it was laid down that an order passed, under Section 144 is not an order in execution under Section 47 of the Code for the purpose of the Court Fee Act and that ad valorem court-fee should be paid on the memorandum of appeal as such order amounts to a decree within the meaning of Section 2(2) of the code.
21. the next question that arises for decision is whether Article 181 or Article 182 of the Indian limitation Ret applies to an application for restitution. We mightmention that as a corollary to the view taken by them, the High Courts of Bombay, Madras and Patna have taken the view that such an application is governed by Article 182 of the Limitation Act. That Article prescribes a period of three years for the execution of a decree or order of any any Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure,. 1908 (5 of 1908),' Column 3 of that Article prescribes different periods of starting points of limitation from the date of decree of order according as there has been an appeal, review or an earner order passed on an application to take some step-in-aid of execution. In this connection mention may be made of the decision in AIR 1940 Bom 30, : AIR1940Mad281 ; AIR 1934 Pat 246 (2). It may be mentioned that Kuiwant Sahay J. and Fazl Ali J. (as he then was) differed from their colleagues and held that such an application is governed by Article 181 of the Limitation Act.
22. In our view Article 181 which is residuary Article applies to
'applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure, 1908'.
The period prescribed therein is three years from the date 'when the right to apply accrues'.
Even amongst High Courts which have held that Article 181 applies, there has been a difference of opinion as regards the starting point, though Article 181 when compared with Article 182 makes it abundantly clear that the period of limitation starts as soon as the right to make an application accrues. Such a right accrues as soon as an order entitling a party to restitution is passed either by the trial Court or the Court of appeal. To hold that in all such cases the starting point of limitation is either from the date of the final decree or order of the final court or appeal is to invoke the provisions contained in Column no. of Article 182 which is not warranted by the wording of the provision in Column 3 of Article 181. This view (SIC) support from Clauses 6 and 7 in column No. 3 of Article 182. The former lays down that Article 182 would be applicable
'in respect of any amount, recovered by execution of the decree or 'order, which the decree-holder has seen directed to refund by a decree passed in a suit for such refund'
and that the starting point for such an application Is
'the date of such last mentioned decree or, in the ease of an appeal therefrom, the date of the final decree of the appellate Court or of the withdrawal of the appeal-'
The latter clause viz., Clause 7 applies to cases
'Where the application is to enforce any payment which the decree or order directs to be made at a certain date'
and the starting point of limitation is 'such date'. It should be remembered that according to the provisions contained in Section 9 of the Indian Limitation Act
'Where once time has begun to run, no subsequent disability or inability to sue stops it'
unless it is expressly provided otherwise by any law in force. If it was the intention of the Legislature that The various alternative starting points of limitation contained in Column 3 of Article 182 should also be applicable to an application made tinder Article 181, it should have certainly so provided. In AIR 1947 All 172 the application for restitution was made on 2-6-1941 for recovery of possession. The application was contested on the ground of limitation, there, the respondents-appellants had filed a suit in the Court of the Munsiff for joint possession and it was dismissed on 2-4-1932. Oh appeal, the first appellate courtreversed the decision, of the Munsiff and decreed the sun on 14-12-1933. While the second Appeal was pending in the High court, the plaintiffs-respondents, in execution of their decree, obtained possession on 3-5-4934. The secondappeal was heard by a Single Judge of the High Court and are decision of the lower appellate court was reversed on 20-10-1936. Against that decision, there was an appeal under the Letters Patent, and the decision of the single Judge was affirmed on 28-10-1938. It was contended by the petitioner that the period of limitation should M counted from 28-10-1938. The Munsiff repelled the plea of limitation and held the application to be in time, me first appellate Court took a contrary view and held the affirmation of the decree by the Letters patent Bench did not give a fresh start to the limitation and that me application was barred by time. In upholding that view his Lordship referred to an earlier Full Bench 'decision of thatHigh Court in AIR 1934 A' 626 and laid down that --
'..... Where the appellate decree merely affirms the decision appealed from, it would not give a fresh start of limitation and that time would begin to run from the date of the first decree, xxxxxxxx'.
A Special Bench of the Calcutta High Court, in : AIR1928Cal646 , had to consider the following question -
'Whether in the circumstances of the present cases, time to be reckoned under Article 181, Limitation Act, should be counted from the date of the decrees of me High Court dismissing the appeals from the decrees of the lower appellate court, or from the dates of the pronouncement of the decrees of the lower appellate court, or whether the respondents are entitled to get deduction of the period occupied by the appeals to this Court?'
After discussing the law on the subject, Rankin, C. J. recorded the opinion of the Special Bench as follows:
'.... We have to determine this case under Article 181, Limitation Act, which directs us in general language to find out the date on which the applicants right accrued. In the ordinary and natural meaning of We words their right accrued immediately the District Judge reversed the decision of the trial court and reduced the amount of the plaintiffs claim. Unless, therefore, we are requited by reason of the -nature of the matter to ignore the effect of that decision because, it was confirmed on appeal it seems to me to be wrong to do so. To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously. Nor does it involve, so far as I can see, the affirmance of any order proposition that can be regarded as inconvenient or absura. I am of opinion therefore that we should answer the question put to us by saying that the time to be reckoned underArticle 181, Limitation Act, should be counted from me decrees of the lower appellate Court and that the tenants are not entitled to get deduction of the period occupied by the appeals to the Court',
23. The Lahore High Court in AIR 1939 Lah 73, considered the question of the starting point of limitation under Article 181 and came to the conclusion that--
'..... the party who has succeeded in the first Appellate court is entitled to apply for restitution without waiting for the decision of any second appeal that may be preferred by the other party. Hence the starting point for limitation under Article 181 is the date of the decree of the first Appellate Court. An unsuccessful attempt by the other party to get that decree reversed cannot give a fresh start for the purposes of limitation'.
24. In (S) AIR 1956 Nag 129 the Nagpur High Court did not discuss the question of starting point of limitation, though it held that Article 181 was applicable 10 an application under Section 144 C. P. C. even where we decree is reversed by the Privy Council.
25. A Full Bench of the Punjab High Court in recorded its opinion on the point thus--
'The third column of Article 181 lays down that limitation shall begin to run from the date 'when the right to apply accrues'. Giving these words the ordinary and natural meaning, it is clear that this right of applying for restitution accrued to the pre-emptor on the date that the District Judge varied the decree of the trial Court and reduced the pre-emption money by Rs. 500/-. The general principle is well established that once limitation has commenced to run it will continue to do so unless it is stopped by any express statutory provision.'
Then their' Lordships referred to the decision of the Privy Council in Lasa Din v. Mst. Gulab Kunwar and proceeded to state that--
There is no material difference between the expression'the right to apply accrued' and the expression 'the causeof action arises', and if anything, the former is moreemphatic. Therefore, the crucial date is the first date orthe accrual of the right to apply. It has been consistentlyheld in the Lahore, Allahabad and Calcutta High Courts thatthe right to apply accrues on the date when for the firsttime a decision is given which entitles a party to applyfor restitution .......'
26. Before closing this discussion reference may bemade to a decision of the Hyderabad High Court in Moho.Samshuddin Khan v. Sultan Alli Khan AIR 1957 Hyd. 11where it has been held that under Article 181 the right toapply for restitution would accrue only after the date orthe final adjudication by the appellate Court. This decision is mainly based on the. earlier decisions of that HighCourt which laid down that
'If a party wails till the final adjudication or the matter then because of the fresh facts and events he gets a fresh right to apply'.
HIS Lordship also sought to support his conclusion from the following observation of the Judicial Committee of the Privy Council in Nagendra Nath v. suresh chandra :
' 'It is at least an intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution which if the final result is against them may lead to no advantage.'
With respect, we are of the opinion that the observations of the Judicial Committee in the aforesaid case are of little assistance in deciding the question at issue. In Nagenora Hath Dey's case AIR 1932 PO 165 their Lordships were concerned with the interpretation of the words 'where there has been an appear occurring in Article 182 (2) of The Indian Limitation Act. The aforesaid observations are immediately preceded by the following passage -
'. . . . There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character appeal or as to the parties to it; the words mean just what they say. The fixation of periods o! limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.'
There is nothing in Article 181 which lends scope for invoking considerations winch weighed with their Lordships in interpreting Article 182(2) which prescribes a starting point of limitation altogether different from the one prescribed under Article 181.
27. In our opinion the starting point of limitation under Article 181 is the date of the decree or order which entities a party to apply for restitution. In that view, the right to apply for restitution in the present case accrued to the respondent on 20-1-1956 immediately alter the appellate decision of the Subordinate Judge reversing the decree or the Kolar Gold Fields Munsiff's Court in O.S. 15 of 1954 on the strength of which the amount had been withdrawn. Unfortunately, the respondent did not file the application till 2-12-1959. The fact that it is within three years from the date of the summary dismissal of the Second Appeal to the High Court on 6-12-1956 Is of no avail to the respondent. It is ascertained from the records that the High Court had granted a stay on 24-9-1956; that stay came to an end on 6-12-1956, when the appeal was disposed of. Even after deducting this period, his petition would be barred by limitation.
28. In the result, we allow the appeals, set aside theorders passed by the District Judge and dismiss the petitions.The respondent's cross-objections claiming interest on meamount ordered to be refunded to him do not survive 'orconsideration and are accordingly dismissed. In the circumstances, we direct the parties to bear their costs through-out.