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Bhawani Shankar Vs. Mahmud Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Reported inAIR1937All232
AppellantBhawani Shankar
RespondentMahmud Ali and anr.
Excerpt:
- - in my judgment this section clearly applies where a decree has been reversed or varied upon appeal, revision or by a review......the minors were represented by a guardian ad litein and eventually the suit was compromised and a decree passed in terms of the compromise. the full terms of the compromise have not been placed before me but it would appear that the compromise was very favourable to the mortgagees who obtained possession of the mortgaged property. by the year 1934 masood ali, a brother of the respondent mahmud ali attained his majority. he consequently filed a suit no. 37 of 1934 claiming that the mortgage decree was not binding on him and therefore that he was entitled to one-fifth of the property which the mortgagees had obtained under the compromise and the decree passed in accordance with it. a similar suit no. 34 of 1934, was filed on behalf of masood ali's two minor sisters and in that suit they.....
Judgment:

Harries, J.

1. This is an appeal by one Bhawani Shankar against a decision of the learned Second Civil Judge of Cawnpore dated 25th May 1935 allowing an application of the respondent Mahmud Ali under Section 144, Civil P.C., for restitution of a certain property. The learned' second civil Judge acceded to the application, hence the appeal of the objector Bhawani Shankar. The facts of the case, in so far as they are material to this application, can be shortly stated as follows:

2. On 12th February 1917 one Fazal Ali mortgaged certain property by a conditional sale to the applicant and others. On 28th April the applicant together with one Durga Prasad filed a suit No. 15 of 1928 to enforce the mortgage. By this time Fazal Ali had died and the suit was brought against his heirs, some of whom were major and some minor. The present respondent Mahmud Ali was a major whereas his brother and sisters were minors. The minors were represented by a guardian ad litein and eventually the suit was compromised and a decree passed in terms of the compromise. The full terms of the compromise have not been placed before me but it would appear that the compromise was very favourable to the mortgagees who obtained possession of the mortgaged property. By the year 1934 Masood Ali, a brother of the respondent Mahmud Ali attained his majority. He consequently filed a suit No. 37 of 1934 claiming that the mortgage decree was not binding on him and therefore that he was entitled to one-fifth of the property which the mortgagees had obtained under the compromise and the decree passed in accordance with it. A similar suit No. 34 of 1934, was filed on behalf of Masood Ali's two minor sisters and in that suit they also claimed one-fifth of the property in question.

3. These two suits were eventually decreed and possession given to Masood Ali of one-fifth of the property and possession of another one-fifth share of the property was given to his two minor sisters. In those suits allegations of fraud and collusion had been made but these allegations were held not to be proved. The learned Judge who decided the case however held that the interest of these minors had not been properly safeguarded in the original mortgage suit and that the compromise was not in their interest, and he, therefore, held that the decree did not bind these persons and that they were entitled to possession of the shares which they claimed.

4. The present respondent, Mahmud Ali, was not a party to these suits brought by Masood Ali and his sisters but he now alleges that the effect of the decrees passed in those suits was to nullify and set aside the whole of the mortgage decree which was passed in terms of the compromise. Consequently he claims that, he also is entitled to his share in the property and has not obtained such share. He made an application under Section 144, Civil P. C, alleging that the decree in the mortgage suit had been reversed and that he was entitled to restitution of the property which had passed to the mortgagees under that decree. He does not contend that this decree has been reversed by a Court of superior jurisdiction but what he says is that the effect of the subsequent decrees is to destroy altogether the first decree. In short after the two subsequent decrees the first decree became an absolute nullity.

5. The present appellant took an objection to this application and the matter was considered by the learned second civil Judge of Cawnpore. He came to the conclusion that this was a proper application, under Section 144, and held that Mahmud Ali was entitled to his share of the property which had passed to the mortgagees by virtue of the decree. He, therefore, granted the application and directed that Mahmud Ali should be put in possession of his share of the property. Against that decision this appeal has been brought and it has been argued that whatever merit the claim of Mahmud Ali may have, such a claim cannot be decided by a Court under Section 144, Civil P.C., It has been contended that even if the subsequent decrees could be said to have varied or reversed the original decree, yet Mahmud Ali could not obtain restitution under this section. It is not necessary for me to express any opinion as to whether or not these subsequent decrees can be said to have varied or made null and void the original mortgage decree. That is a matter which may be the subject of litigation hereafter and that being so I express no opinion upon it because it is not necessary to decide that fact to dispose of this appeal. In my view, even assuming that these subsequent decrees did vary or nullify and avoid the original mortgage decree, yet the respondent Mahmud Ali could not possibly obtain restitution under Section 144, Civil P.C.,

6. Section 144, Civil P. C. provides:

(1) Where and in so far as a decree 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 such part thereof as has been varied or reversed... (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).

7. From the wording of this section it is in my judgment clear that in order to obtain restitution the applicant must establish that the decree under which he was compelled to part with his property was varied or reversed by a Court which had jurisdiction to vary or reverse the decree. Further the use of the phrase 'Court of first instance' contemplates that (the variation or reversal of the decree is made by a superior Court. In my judgment this section clearly applies where a decree has been reversed or varied upon appeal, revision or by a review. Where the consequences of a decree have been affected by a subsequent decree passed in another suit, there has been no variation or reversal of the earlier decree within the meaning of this section. Courts of equal jurisdictions cannot reverse or vary each other's decrees, although in a suit a Court might hold that an earlier decree passed by another Court is not binding upon the plaintiff before it by reason of fraud, collusion or other cause. In my view Section 144 contemplates the reversal or variation of a decree by a Court competent to do so. There is no express decision upon this section in this Court, but the matter was referred to in the judgment in the Full Bench case in Bindeshri Prasad Tiwari v. Badal Singh A.I.R. 1923 All. 394. The learned Judges at p. 372 observe:

The question whether the application comes under Section 47 or Section 144, Civil P.C., is one of some difficulty. The words 'varied or reversed' used in Section 144 seem more applicable to a proceeding by way of appeal, revision or review than to a separate suit declaring that a suit is not binding on a particular party.

8. As I have stated, that is not a definite decision but it is the opinion expressed by three learned Judges of this Court who constituted that Bench, although that opinion was perhaps not strictly necessary for the decision of the case before them. The matter does not rest there however because this section has been considered by the Patna High Court in a number of recent cases: see Chintaman Singh v. Chuni Sahu A.I.R. 1916 Pat. 299, Ram Ratan Prasad v. Banarsi Lal A.I.R. 1930 Pat. 280 and Hemendra Chandra Mullick v. Ballavi Devi A.I.R. 1933 Pat. 564 in which the same view was taken. A similar view has also been expressed by the Calcutta High Court: see Ashutosh Nandi v. Kundal Kamini Dasi : AIR1929Cal814 and Gopal Paroi v. Swarna Bewa : AIR1931Cal14 . In a recent case of this Court, Amba Lal v. Ram Gopal Madho Prasad : AIR1933All218 this section was considered by a Bench of this Court but they expressly refrained from expressing any opinion as to whether or not Section 144 applied to cases where an earlier decree had been affected by another decree passed in a separate suit. Having regard to the cases decided in other High Courts and the expression of opinion in the Full Bench case of this Court, Bindeshri Prasad Tiwari v. Badal Singh A.I.R. 1923 All. 394 to which I have referred, I am bound to hold that Section 144, Civil P.C., cannot apply to the facts of this case because there has been no variation or reversal of a decree as contemplated by that section. That being so, the decision of the learned second civil Judge cannot be sustained. It has been urged however by Dr. Faruqi that even if it is held that this application for restitution could not be made under Section 144, the Court could order restitution under Section 151, Civil P.C., by virtue of its inherent powers. It is clear that the Court did not purport to act under Section 151, Civil P.C., and in my view could not act under that section in this case. That section can only be invoked where restitution cannot be obtained in any other way. No such case has been made out.

9. As I have stated previously I express no opinion as to the rights of Mahmui Ali if he takes other proceedings to obtain possession of this property. All I hold in this case is that proceedings under Section 144, Civil P.C., were misconceived and the learned Judge had no right to make the order which he did under that section. In the result therefore this appeal must be allowed and the order of the learned second civil Judge set aside. The appellant must have costs of this appeal and of the proceedings in the Court below.


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