1. Against an order passed in E. A. No. 114 of 1972 in E. P. No. 17 of 1965 on the file of the Court of Chief Judge , City Civil Court, Hyderabad, respondents 2 and 3 have preferred C. M. A. No. 10 of 1973, while C. M. A. No. 33 of 1973 was preferred by the first respondent. There is a long history which led to the filing of these two appeals and it is better to state the same briefly in order to understand the respective contentions of both the parties.
2. One Ramachander (1st respondent in both the appeals) was a tenant in a malgi No. 21-2-120 Kaman-e-saher-e Batil , situated at Charkaman, Hyderabad which is an endowment belonging to Murali Manohar Temple, Hyderabad. The said endowment was governed by Hyderabad Endowments Regulations sanctioned by His Exalted Highness, the Nizam on 16th Shahban 1358 Hijri 1349 F. 1940 A.D. Exercising powers under clause No. 14 of the said regulations, the Director of Endowments passed an order on 14th August 1965, that Ramachander should be evicted from the said premises. Aggrieved by that order Ramachander preferred a revision petition before the Government of Andhra Pradesh under clause No. 18 of the said regulations. He applied for a stay of the operation of the order of eviction. But it was refused. Ramachander was therefore, evicted on 30-10-1965 by the Director of Endowments, who filed E.P. 17 of 1965 before the Chief Judge, City Civil Court, Hyderabad, which Court had to execute any such order of eviction in the same manner as possession is delivered in the execution of any decree and in the course of which execution the sections that are applicable to the execution of a decree would also apply to those proceedings as well.
3. After Ramachander was evicted the second appellant in C. M. A. No. 10 of 1973, was inducted as a tenant by the 1st appellant for eleven months under a rental agreement dated 11-11-1965 on a monthly rent of Rs. 65/-. Ramachander's revision petition was ultimately allowed by the Government in its proceedings Home (Endowments III) Department, Memorandum No. 291/B-III/68-14 dated 6-3-1967. By that order the Government directed that Ramachander, the former tenant of Malgi should be given possession of the Malgi on a monthly rent of Rs. 75/- with immediate effect and the Commissioner, Charitable and Religious Institutions and Endowments Department , was requested to obtain a fresh agreement from Rachander after cancellation of the lease agreement of the present tenant, if necessary, and hand over possession to Ramachander of the said Malgi. By the date of this order the period of 11 months tenancy of the second appellant in C. M. A. No. 10 of 1973 had expired.
4. Dilsukhram, second appellant in C. M. A. No. 10 of 1973 thereupon filed writ petition No. 530 of 1967 challenging the validity of the order passed by the Government on the revision petition on 6-3-1967. He applied for stay in C. M. P. No. 2464 of 1967 and interim stay was originally granted. But at the time of final hearing my learned brother Gopal Rao Ekbote, J. (as his Lordship then was) vacated the interim stay holding that Dilsukhram cannot have any rights to the malgi since he was given the malgi during the pendency of the eviction proceedings and subject to the result of the said proceedings. Dilsukhram preferred Writ Appeal No. 39 of 1967 against the said order in the stay petition. But the writ appeal was dismissed on 26-7-1967 . Thereupon Dilsukhram withdrew his writ petition No. 530 of 1967. Thereafter Dilsukhram filed a review petition before the Government on 21st July, 1967 to review the order dated 6-3-1967 on the ground that he was not a party to that order. The Government allowed the said review petition without giving any notice to Ramachander.
5. Ramachander who came to know about the order on the review petition of Dilsukhram, thereupon filed a petition before the Minister to set aside the ex parte order in the review petition and prayed for a hearing of the said review petition in the presence of both the parties and decide it on merits. But the Government dismissed the said petition filed by Ramachander.
6. Thereupon, Ramachander filed a Writ Petition No. 2108 of 1968 against the order refusing to set aside the ex parte order in the revision petition of Dilsukhram. The said writ petition was allowed and the Government was directed to dispose of the review petition filed by Dilsukhram on merits after giving opportunity to Ramachander. The Government thereupon gave notice to Ramachander in pursuance of the High Court's order. Ramachander filed his counter in the review petition and contended that the review petition was barred by limitation . Government however allowed the review petition without considering the plea of limitation raised by Ramachander.
7. Aggrieved by the said order Ramachander again filed Writ Petition 172 of 1969. The said Writ Petition was allowed by this Court on 17-1-1969 and the High Court directed the Government to dispose of the review petition on all the points raised by Ramachander.
8. When the matter went back and the Government failed to pass any order on the review petition, even after hearing the parties , Ramachander once again moved this Court in writ petition No. 1015 of 1971 to fix time for the disposal of the review petition. The High Court in the said writ petition in a C. M. P. fixed the time as 15th March, 1972 for its disposal by the Government.
9. At last the Government by its order dated 15-3-1972 rejected the review petition filed by Dilsukhram on the ground that it was barred by limitation. After the said review petition was dismissed Ramachander filed the present E. A. 114 of 1972 claiming that he is entitled to be restored to the possession of the above said property under Sec. 144 Civil P.C. read with clause No. 14 of the Hyderabad Endowment Regulations, 1940.
10. The appellants in both the appeals opposed the said petition. The first appellant in C. M. A. 10 of 1973 contended that Ramachander was already evicted and the E. P. 17 of 1965 was closed by an order of that Court dated 6-5-1968 and the E. A. No. 69 of 1965 filed by Ramachander was also dismissed as not maintainable and the lower Court had therefore no jurisdiction to pass any order contrary to previous orders.
11. Second respondent (first appellant in C. M. A. No. 10 of 1973) contended that the 3rd respondent (Dilsukhram) was in occupation of the said malgi having been lawfully inducted into possession by a competent authority and hence the petition for restitution was not maintainable unless he was evicted through proper legal proceedings.
12. Third respondent (Dilsukhram) second appellant in C. M. A. No. 10 of 1973 contended that he was given possession of the premises under the lease and till that deed of lease is cancelled either by the first respondent or by any other person, even though that lease period had expired by the date of passing of the orders by the Government on 6-3-1967, it cannot operate to put an end to his rights as tenant holding over or statutory tenant and hence the second respondent (first appellant in C. M. A. No. 10 of 1973) was bound by the registered lease deed and the third respondent (Dilsukhram) was entitled to continue in possession and the petition for restitution was, therefore, not maintainable.
13. on those pleadings the lower Court considered the respective contentions, after hearing the parties, and allowed the petition by its order dated 29-12-1972. The lower Court found that none of the contentions raised by the respondents were sustainable and the petitioner (Ramachander) was entitled to restitution as he was evicted by an order, which had been subsequently set aside in revision. He also found that the orders passed by his learned predecessor in E.P. No. 17 of 1965 and E. A. No. 69 of 1965 do not really affect the question under consideration and do not operate as res judicata. In this view the restitution petition was allowed with costs.
14. In these appeals the learned counsel appearing in these two appeals have raised various contentions most of which were not raised or argued before the lower Court. The two contentions raised by Sri Babul Reddy, learned counsel appearing for the appellant in C. M. A. 10 of 1973 are as follows :-
(1) The original order of eviction was not actually set aside or held to be bad. There was only a direction by the Government that Ramachander should be given possession. There is therefore is no question of restitution on account of variation or reversal of any order. His remedy , according to the learned counsel is only to approach the Commissioner or to file a suit.
(2) There is no question of any restitution in this matter as there was no question of execution of any order which has been subsequently passed. The order if at all relates to the manner in which the possession is delivered and not the manner of execution.
15. Sri Venugopal Reddy learned counsel appearing for the appellant in C. M. A. No. 33 of 1973 has argued the following points :
(1) The Civil Court has no jurisdiction to entertain this application since the Hyderabad Endowments regulations have been repealed by Andhra Pradesh Charitable Hindu Religious Institutions and Endowments Act No. 17 of 1966.
(2) There is actually no order of reversal in this case.
(3) The revision under clause 18 is not maintainable against an order passed under clause 14.
(4) The order dated 6-3-1967 has not become final, since the Government has issued the notice on 17-3-1972 to the parties indicating that it wanted Suo Motu to revise the prior order dated 6-3-1967.
(5) It is not a case coming under Section 144, Civil P.C. His argument under this point is the Commissioner or the Court as a forum under the Hyderabad Endowments Regulations has been abolished under the new Act. They have not been revived or kept alive under the new Act. When once the forum itself has been abolished the right of restitution also cannot exist.
16. It may be stated at the outset that most of these contentions were not raised or argued by the learned counsel before the lower Court. In any event as I have heard elaborate arguments from both the learned counsel I shall deal with them.
17. In order to appreciate the respective contentions of the parties, it is necessary to extract the relevant portions of the original order of eviction and the subsequent order passed in revision :
'The facts of the case are that the Managing Committee Murali Manohar Temple situated at Kamman-Sher-e-Btal, Hyderabad City, made a representation that Ramachander , a tenant of Malgi No. 21-2-120 under the temple is an undesirable element and is always causing trouble etc., besides he has occupied unauthorisedly a room which acts as a passage to the temple.
A memo from the Endowments Department was served on the tenant that the temple committee does not want to continue him as a tenant due to his unauthorised acts. Besides the malgi is also required for the temple purposes. He was therefore directed to vacate the premises within a month from the receipt of the notice failing which the Department would be constrained to get him vacated. The tenant failed to comply with the orders.
The temple committee and the tenant were heard by me on 5-3-1965 and subsequently I personally inspected the temple and the malgi on 8-3-1965. It was observed that the relation between the tenant and the temple management are strained and that the rent of Rs. 40/- being paid by the tenant is low. The tenant was therefore asked to pay rent of Rs. 50/- per month, but he did not give response to the suggestion.
The tenant is incorrigible and not amenable to any reason. It is therefore ordered that he should be evicted from the premises under Section 14 of the Hyderabad Endowment Regulations.
Sd. G. Narayana Chetty
Director of Endowments.'
The order in revision is as follows :
'After careful consideration of all aspects of the case and in view of the undertaking filed by Sri Ramachander before the Minister for Law and Prisons on 12-1-1967 to pay rent at Rs. 75/- per month for Malgi No. 21-2-120 belonging to Sri Murali Manohar Swamy Temple, Kammam Saher Batil, Charkaman, Hyderabad City Government , direct that Sri Ramachander , the former tenant of the malgi be given possession of the malgi on a monthly rent of Rs. 75/- with immediate effect.
The Commissioner , C. H. R. L. & E Department is requested to obtain a fresh agreement from Sri Ramachander after cancellation of the lease agreement of the present tenant, if necessary and handover to him possession of the said malgi.
A. R. Gopal,
Joint Secretary to Govt.'
18. Subsequent to the above order of eviction Sri Ramachander filed E. A. No. 69 of 1965 alleging that the decree-holder has no right to file execution petition and that clause 14 of Hyderabad Endowment Regulations had no application to the facts of the case and the bailiff also acted illegally and unlawfully in breaking open the locks to deliver possession after sunset and some portions unconnected with the subject-matter of the execution petition. The E.P. as well as the other E.A.'s were considered by the lower Court and they were all dismissed. The two points that were considered in that order were, whether that court had jurisdiction to entertain E.P. on which point it was found that it had jurisdiction and secondly whether the bailiff acted illegally or unlawfully in executing the warrant of delivery, which was found against. Delivery of possession, in pursuance of the decree was therefore recorded and E.A. No. 69 of 1965 was also dismissed on 6-5-1968. It has to be seen from the said order that it does not , in any way , touch the point that now arises for consideration viz, whether Ramachander is entitled to restitution.
19. On the question, whether there is an order of reversal or not, it is clearly seen from the order passed by Government in revision that they have directed that Ramchander, the former tenant of the malgi should be given possession of the malgi on a monthly rental of Rs. 75/- with immediate effect. In order to enable that to be done, they also directed the commissioner, to evict the new tenant, if necessary, and hand over possession of the said malgi to Ramchander. In substance and effect, that was the order, which was passed in the revision petition, which varied the original order of eviction passed on 14-5-1965. It may be that the second order may not have stated that the revision petition was allowed, but it is clearly seen from the said order that it was an order passed in the revision petition only. We have to see to the substance and effect of the order, rather than the form. The earlier order of eviction has been set aside and the revision petitioner was directed to be put back into possession with immediate effect. I am therefore, definitely of the opinion that the order is only order of reversal or variation of the original order and as such Ramchander was entitled to restitution.
20. The next question that arises for consideration is what is the remedy of Ramachander Is he merely to approach the Commissioner asking him to put him in possession by passing another order of eviction of the new tenant or can he approach the lower Court, which has evicted him on the basis of an order which has been subsequently set aside I do not agree with the contention of the learned counsel for the appellant in C.M. A. No. 10/73 that his (Ramachander's) remedy is only to approach the Commissioner once again for an order that he should be put back into possession. It is clear from the order of Government that the Commissioner should take steps immediately to evict the new tenant and put the old tenant in possession. There is no further necessity for Ramachander to approach the Commissioner . Moreover since Ramachander had been evicted by the Civil Court in execution of an order of the Commissioner dated 14-5-1965 , when once the said order had been reversed or varied , it is certainly open to Ramachander to approach the Civil Court with a petition under Section 144 Civil P.C. to put him back into possession.
Sec. 144 , Civil P.C. is in the following terms :
'144 (1) 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 be made, as will so far as may be place the parties in the position which they would have occupied but for such decree or 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.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).'
21. In Jai Berham v. Kedar Nath, AIR 1922 PC 269 at p. 271 Lord Carson speaking on behalf of the Privy Council explained the scope of this section as follows :-
'It is the duty of the Civil Court under Section 144 of the Civil Procedure Code to 'place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or revered.' 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. As was said by Cains L.C. in Rodger v. The Comptoir de Escomte De Paris (L. R. 3 PC 465 at page 475) '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.'
22. In Mahijibhai v. Manibhai , : 2SCR436 the above dictum was approved by their Lordships of the Supreme Court while interpreting the scope of Section 144 , Civil P.C. His Lordship Subbarao, J. (as his Lordship then was) speaking for the majority view , observed as follows :-
'When a party , who lost his property in execution of a decree , seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He 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. Prima facie , therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree.'
23. In Binavak Swain v. Ramesh Chandra, : 3SCR24 , their Lordships were dealing with an application for restitution , in a case where in execution of an ex parte decree , the property of the judgement debtor was sold and the same was purchased by the decree-holder himself , but the decree was setaside in appeal and the suit was remanded for rehearing and fresh disposal. There the question was whether he was entitled to restitution of the properties purchased by the decree-holder , because the suit , after remand was again decreed. It was held by their Lordships at p. 950 as follows :-
'We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time at which the application for restitution was made. The principle of the doctrine of restitution is that on the reversal of a decree , the law imposes an obligation on 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 . This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree : and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from.'
24. In view of the above authorities it is clear that the petitioner in the restitution petition (Ramachander) is clearly entitled to restitution since the very foundation of the order of eviction has been knocked out by the order passed in the revision by the Government.
25. The next point that arises for consideration is whether the restitution petitioner should approach the Commissioner or come direct to the Civil Court and ask for restitution In this connection it may be mentioned that under the Hyderabad Endowments Regulations the execution of the order of eviction passed by the Director of Endowments was vested in the Civil Court and the Civil Court in executing that decree is governed by the other provisions relating to the execution of decrees.
26. It has been held in Marudhamuthu Poosari v. Hindu R. E. Board, AIR 1937 Mad 653 by Varadachariar, J., that when once the matter comes before a regular Civil Court, its further course would be governed by the provisions of the Act.
27. Same is the view expressed in Kandaswami v. Neelamegam Pillai, AIR 1947 Mad 112 where the relevant case law has been discussed and the same rule has been laid down. One of the decisions relied upon by Chandra Sekhara Ayyar , J., in that decision is the one reported in National Telephone Co. Ltd. v. Postmaster General (1913) AC 546 where Viscount Haldane L.C. says at p. 552 as follows:
'When a question is stated to be referred to an established Court without more it in my opinion imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decisions likewise attaches.'
28. On the basis of the above principles, it should be held that once the execution proceedings under the Hyderabad Endowments Regulations are placed into the hands of the ordinary Civil Court, the provisions of the Civil Procedure Code relating to that subject would apply Mutatis Mutandis. I am therefore of the opinion that when in execution of a decree a Civil Court has dispossessed a person, it is certainly open to that person to approach the very same Civil Court and after satisfying it that the order of eviction against him has been varied or reversed he can ask for restitution under Section 144 , Civil P. C.
29. I may in this connection refer to a decision of a Division Bench of Madras High Court in Thangaswamy v. Bapoo Sahib, : AIR1951Mad804 . In that case an order of ejectment passed by the Rent Controller was executed through Civil Court as per the provisions of Madras Buildings (Lease & Rent Control) Act 15 of 1946. When the said order was reversed in appeal it was held that the original Court which gave possession to the landlord, in pursuance of the order of eviction which was subsequently set aside , can order restitution of the property. It was also held that the tenant need not, for that purpose approach the Rent Controller nor was the Rent Controller entitled to institute a separate suit. The same principle applies to this case as well. I may also in this connection refer to the decision of Somnath Iyer, J., in Padma Gowda v. Y. Hegde, AIR 1960 Mys 337. In that case the District Munsif to whom a decree was transferred under Section 66 of the Madras Village Courts Act even though he was a persona designata he was held to have the power to order restitution after the reversal of the decree which had been previously executed by him. It was held by the learned Judge that even though the application was filed under Section 144 it was competent for the District Munsif to order restitution under inherent powers. The decision in AIR 1922 PC 269 was relied upon. In Allkutty v. Veerummakutty Umma, ILR (1963) 1 Ker 533 the application for restitution was in respect of costs recovered in pursuance of the order of District Registrar directing compulsory registration of two documents which decree was executed in Court by the Munsif and the costs were realised. The said order of costs having been reversed in a fresh suit, the application for restitution was made before the District Munsif. The District Munsif dismissed the application. But in appeal the learned Subordinate Judge allowed them. In further appeal to the High Court it was held that the Court which executes a decree or order is the court of first instance within the meaning of Section 144 Civil P. C. and the application was therefore maintainable. The learned Judge, therein followed another decision of Travancore Cochin High Court in Kutty Mhamathu v. Saithu Moitheen Sahib, AIR 1953 Trav Co 318 wherein it was held that the Munsif Court must be held to be the Court of first instance although the executable order was passed by the Rent Controller.
30. It is seen from the above decisions that whenever an order of any Court or tribunal is executed through Civil Court and that when that order is varied or reversed in appeal or in some collateral proceedings or in a suit, the application for restitution under S. 144 lies before the Civil Court, which has executed the original order.
31. I therefore hold that this application for restitution is maintainable in the lower Court. I shall now deal briefly with the other contentions raised by the appellants.
32. The contention of Sri Venugopal Reddy, that the Civil Court has no jurisdiction to entertain this application because of the repeal of Endowments Regulations, has no force. We are not here concerned with the power of the Endowments authorities to pass an order, after the repeal of the Endowments Regulations. The order under revision was passed on 6-3-1967 and it has been taken to be an order of variation by both the parties. If so, there is no question of Civil Court's jurisdiction to entertain an application for restitution being taken away by virtue of the repeal of the Endowment Regulations. Moreover this plea was not taken up by the appellants in the lower Court.
33. I have already held that the order by the Government in the revision petition dated 6-3-1967 amounts to an order of reversal or variation, of the original order of eviction.
34. The third contention of the learned counsel that the revision itself was not maintainable, under Rule 18, has similarly no force. This Court is not sitting in appeal against the order passed in such revision. The learned counsel has not brought to my notice any other decisions to show that the order in revision is bad. I therefore reject this contention.
35. The next contention of Sri Venugopal Reddy and also Sri Babul Reddy that the order dated 6-3-1967 has not become final, has not been substantiated by them. Both parties mentioned to me that there was notice issued by the Government on 17-3-1962 for suo motu revision of the earlier order passed in revision dated 6-3-1967. They are unable to place any information before me as to what happened to that notice. On the other hand Mr. S. C. Venkatapathy Raju, learned counsel for the respondent has placed before me an order dated 17-5-1972, rejecting the petition filed by the Appellant in C. M. A. No. 10 of 1973 on 19-5-1972. Mr. Raju says that this is the final order by the Government even in respect of the suo motu notice. Neither party has brought to my notice any definite information about the further revision. In my event, I do not think it is material at this stage. If the Government were to review its earlier order passed on revision on 6-3-1967, then the successful party in such further order, assuming such an order comes into existence, would also be entitled to again approach the Civil Court for such redress as restitution or otherwise, as is now being done by the restitution petitioner in the lower Court.
36. Next coming to the last contention of Mr. Venugopal Reddy, I do not see any force in the same. His contention is that the Commissioner or the Court as a forum is abolished and therefore the right of restitution also stands abolished. He relied upon the decision of the Supreme Court in Daji Saheb v. Shankar Rao, : 2SCR872 . I am unable to understand how the principle of that decision has any application to the facts of this case. It was held by their Lordships in that decision that a party to a suit has, on the cause being decided by the Court and when allowed under law, a vested right of appeal to the superior Court, but if the superior Court to which, an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeal, the vested right perishes. I am of the opinion, that the said principles is not attracted in this case. The learned counsel also cited the decision in S. P. T. Swamulu Varu v. H. R. & C. E. Commr., : AIR1971AP211 , and argued that in spite of the repeal of the Madras Act 19 of 1951, the Commissioner was allowed to function as an appellate authority under Section 61 (1) for the limited purpose of entertaining, continuing and disposing of appeals before him at the time of coming into force of the new Act. But the said principle cannot be applied to this case because the Endowments Regulations themselves have been repealed and in its place Section 75, 76 and 93 of the New Act, the real question with which we are now concerned in whether a person, who has been evicted in pursuance of an order under the law is or is not entitled to a restitution, in a Civil Court, when the basis of that order has been validly set aside in a Revision Petition. While considering that question, it is not necessary, in my opinion, to consider the respective powers of the two Tribunals under the Old and New Acts. We have to merely see whether there was an earlier order of eviction and whether that order has been varied or reversed in order to enable the person to have his remedy under Section 144, Civil P. C. I do not therefore find any substance in any of the contentions raised by the learned counsel in both the appeals.
37. I am clearly satisfied that the order passed by the lower Court is correct and has to be upheld. In this view the two C. M. As. 10 and 33 of the 1973, are dismissed with costs.
38. Order accordingly.