Skip to content


Math Sauna and ors. Vs. Kedar Nath Chaube - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberEx. First Appeal No. 128 of 1971
Judge
Reported inAIR1977All115
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144 and 144(2)
AppellantMath Sauna and ors.
RespondentKedar Nath Chaube
Appellant AdvocateG.N. Verma, Adv.
Respondent AdvocateRajendra Sahai Verma, Adv.
DispositionAppeal dismissed
Excerpt:
civil - restoration application - section 144 of code of civil procedure, 1908 - application for restoration implies execution of decree - a simple application enough - no need to file suit - restoration application to be filed in original court of execution. - - this argument ignores the specific language of section 144 which clearly provides that it is the court of first instance which is competent to entertain an application for restitution;.....which held that the plaintiffs were entitled to possession over the properties at amauli. the plaintiffs' appeal was directed against the decree that plaintiff no. 3 was not the de jure mahant but only the de facto mahant. the appeal filed by the defendant (first appeal no. 80 of 1964) was allowed and it was held that the plaintiffs were not entitled to the properties of amauli specified as 'a', 'b', 'c' and 'e' in the schedule attached to the plaint. allowing the appeal of the plaintiffs it was declared that plaintiff-no. 3 was both de jure and de facto mahant of math sauna (plaintiff no. 1).2. during the pendency of the defendant's appeal (f. a. no. 80 of 1964) an application was made by the defendant-appellant for staying execution of the decree for possession over the amauli.....
Judgment:

K.N. Seth, J.

1. The plaintiff-appellants obtained a decree against the defendant in respect of certain properties situate in village Amauli. In respect of certain other reliefs, however, the suit was decided against the plaintiffs. Both the parties preferred appeals to this Court. The defendant appealed against that part of the decree which held that the plaintiffs were entitled to possession over the properties at Amauli. The plaintiffs' appeal was directed against the decree that plaintiff No. 3 was not the de jure Mahant but only the de facto Mahant. The appeal filed by the defendant (First Appeal No. 80 of 1964) was allowed and it was held that the plaintiffs were not entitled to the properties of Amauli specified as 'A', 'B', 'C' and 'E' in the Schedule attached to the plaint. Allowing the appeal of the plaintiffs it was declared that plaintiff-No. 3 was both de jure and de facto Mahant of Math Sauna (plaintiff No. 1).

2. During the pendency of the defendant's appeal (F. A. No. 80 of 1964) an application was made by the defendant-appellant for staying execution of the decree for possession over the Amauli properties. The execution of the decree was stayed subject to the condition that the defendant appellant deposited & sum of Rs. 3,500/- every year in court. The plaintiff decree-holders were allowed to withdraw the amount on furnishing security. The defendant deposited a total sum of Rs. 14,000/- in pursuance of the interim order of this Court Out of this sum the plaintiff-decree holders withdrew a sum of Rs. 7000/- on furnishing security in the trial court. While allowing the appeal filed by the defendant this Court discharged the stay order and further directed that if the amount deposited by the defendant was still in deposit in the court below, the defendant will be entitled to withdraw the same. The plaintiffs made an application in this court under Article 133 of the Constitution for a certificate for leave to appeal to the Supreme Court against the decree allowing the appeal of the defendant. On 14-5-1969 a Bench of this Court while dealing with that matter on the prayer of the plaintiffs granted four months' time to deposit back the sum of Rs. 7000/-which they had withdrawn from the court below on furnishing security. The plaintiffs on the strength of a certificate granted by this Court preferred an appeal before the Supreme Court. In that appeal they made an application for staying delivery of possession of the Amauli properties but the Court, on certain undertakings given by the defendant-respondent, declined to grant any interim order in favour of the appellants. It was further observed that the respondents were at liberty 'to take such proceedings as advised to make the petitioners deposit Rs. 7,000/- ordered by the High Court'. The defendant made an application to the trial court praying that the amount of Rs. 7000/- be realised from the plaintiffs. This application was made in the form prescribed for execution of a decree. The prayer in the application was that the amount be realised by sale of the property given in the registered security bonds or in any other manner which the court may deem fit and proper. The plaintiffs filed an objection asserting that the amount could not be realised by executing the decree and that they were not liable to pay the aforesaid amount. The trial court by its order dated 17-7-1971 rejected the objections of the plaintiffs and directed that the execution shall proceed after a month and in the meantime the parties may bring a stay order or a clarification from the Hon'ble the Supreme Court, The plaintiffs have challenged the correctness of the order of the trial court to proceed with the execution of the decree.

3. Learned counsel for the appellants urged that the application for execution made by the defendant respondent was not competent for he had no decree in his favour and his remedy, if any, lay by way of a regular suit. The argument is wholly misconceived. The trial court had decreed the plaintiff's suit in respect of Amauli properties. That decree was reversed by this Court on an appeal by the defendant and it was held that the defendant was the owner in possession of the Amauli properties. During the pendency of the appeal in this Court the defendant had deposited a sum of Rs. 14,000/- as a condition for the stay of the execution of decree for possession. On the reversal of the trial court decree the defendant became entitled to the sum which had been deposited by him. In fact while disposing of the appeal this Court specifically directed that the defendant would be entitled to withdraw the amount deposited by him in the court below. There is no dispute that the defendant is entitled to withdraw that amount but the only objection raised by the appellants was that the remedy sought by the defendant was misconceived and he had no right to realise this amount by way of execution. It is, however, not disputed that the defendant is entitled, to restitution of the amount withdrawn by the plaintiffs. The controversy raised by the appellants is highly technical The defendant being entitled to recover the amount withdrawn by the plaintiffs could approach the trial court with a simple application for restoring the status quo ante by directing the plaintiffs to return the amount withdrawn by them from the court and the court would have been competent to proceed against the plaintiffs for realising that amount. At one stage there did exist some controversy about the nature of the restitution proceedings but now it has been settled by the Supreme Court in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai : [1965]2SCR436 that an application for restitution is an application for execution of a decree. The historisal background of Section 144, C.P.C. also indicates that an application for restitution is in essence an application for execution of a decree. The Code of Civil Procedure, 1882, for the first time introduced Section 583 providing for restitution. That section reads 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.'

Under this section any party entitled to any benefit under a decree passed in an appeal could file an application in a court which passed a decree against which the appeal was preferred for the purpose of executing the appellate decree. The appellate decree may not have expressly contained a direction for restoration of the property taken by the respondent in execution of the decree of the first court, but if any benefit to which the decree-holder would be entitled as a consequence, of that decree of reversal, that could be enforced by means of an application. The setting aside of the decree itself raised the necessary implication that the parties should be restored to their original position. Under the present Code Section 144 is more comprehensive. This section does not create any right of restitution. As laid down by the Judicial Committee in Jai Berham v. Kedar Nath Marwari, (AIR 1922 PC 269) :--

'It is the duty of the 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 reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all patries involved.'

A Full Bench of this Court in Jagendra Nath Singh v. Hira Sahu : AIR1948All252 also took the view that the jurisdiction to make restitution is inherent in every court and will be exercised wherever the justice of the case demands it The main objection of the learned counsel for the appellants appears to be the form -in which the application is made though the object was to claim restitution as provided under Section 144, C.P.C. The form in which the application was made is wholly immaterial. No particular form appears to have been prescribed for an application under Section 144. Since the restitution proceedings are in the nature of execution proceedings, an application in the form prescribed for execution of a decree could not render the application for restitution illegal or invalid. It has not caused any rejudice to the present appellants as they were afforded full opportunity to contest the application made by the respondent.

4. It was next urged that the application for restitution should have been made in the High Court under whose orders the amount had been deposited by the defendant as a condition for stay of the execution of the decree of the trial court and the High Court alone was competent to pass suitaible orders for restitution of the amount withdrawn by the plaintiffs. This argument ignores the specific language of Section 144 which clearly provides that it is the court of first instance which is competent to entertain an application for restitution; It is only the court which executes the decree that has jurisdiction to order restitution. The application was, therefore, rightly filed in the court below. The argument that the remedy of the defendant was only by way of a regular suit is equally fallacious in view of Sub-section (2) of Section 144 which provides that no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained under Sub-section (1) of Section 144.

5. No other point has been raised before me.

6. The appeal has no merits and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //