Skip to content


Parmeshar Singh and ors. Vs. SitladIn Dube and anr. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtAllahabad
Decided On
Reported inAIR1934All626; 150Ind.Cas.1096
AppellantParmeshar Singh and ors.
RespondentSitladIn Dube and anr.
Excerpt:
- - the high court dismissed the second appeal and affirmed the decree of the district judge on 13th june 1929. 2. on 2nd september 1929, the defendants filed the application out of which this appeal has arisen for recovery of the value of standing crops as well as mesne profits from 5th march 1925 till the 5th october 1926. the plaintiffs objected to this application on the ground that it was barred by limitation, that it was not maintainable and that the amount of damages claimed by the defendants was excessive. 3. it is obvious that if the proceeding were an execution proceeding then article 182, limitation act, would be applicable and there would be a fresh start for purposes of limitation from the date of the high court's decree and the application would therefore be well within.....sulaiman c.j.1. this is a plaintiffs' appeal arising out of an application for restitution and compensation under section 144, civil p.c. suraj narain pal took a perpetual lease from the zamindar of sir lands measuring 35 bighas odd and obtained possession. the lessee's rights were subsequently sold to sitladin and bal gobind, defendants-respondents. later on the zamindar sold his rights to jagarnath and others, the plaintiffs-appellants. a suit was brought for. recovery of possession by avoiding this lease and it was first decreed by the first court on 21st january 1925. the plaintiffs, immediately thereafter obtained delivery of possession of the property on 5th march 1925. the defendants appealed to the lower appellate court which allowed the appeal and dismissed the suit on 17th.....
Judgment:

Sulaiman C.J.

1. This is a plaintiffs' appeal arising out of an application for restitution and compensation under Section 144, Civil P.C. Suraj Narain Pal took a perpetual lease from the zamindar of sir lands measuring 35 bighas odd and obtained possession. The lessee's rights were subsequently sold to Sitladin and Bal Gobind, defendants-respondents. Later on the zamindar sold his rights to Jagarnath and others, the plaintiffs-appellants. A suit was brought for. recovery of possession by avoiding this lease and it was first decreed by the first Court on 21st January 1925. The plaintiffs, immediately thereafter obtained delivery of possession of the property on 5th March 1925. The defendants appealed to the lower appellate Court which allowed the appeal and dismissed the suit on 17th February 1926. Two in fructuous applications for redelivery of possession were made and were struck off. On 5th March 1925, the plaintiffs obtained delivery of possession of the lands from the defendants. Their prayer for mesne profits and for compensation could not be granted at that time as there was a stay order issued by the High Court. The stay order was discharged shortly afterwards, but no fresh application for mesne profits or compensation was made by the plaintiffs and they waited till the disposal of the second appeal. The High Court dismissed the second appeal and affirmed the decree of the District Judge on 13th June 1929.

2. On 2nd September 1929, the defendants filed the application out of which this appeal has arisen for recovery of the value of standing crops as well as mesne profits from 5th March 1925 till the 5th October 1926. The plaintiffs objected to this application on the ground that it was barred by limitation, that it was not maintainable and that the amount of damages claimed by the defendants was excessive. The first Court held that the application was barred by time under Article 181, Limitation Act, and also held that it was not maintainable. The lower appellate' Court has come to the conclusion that Article 181 applies and that time began to run from the date of the High Court's decree and therefore the application was not barred by time. It has further held that it is maintainable. Before the lower appellate Court it was agreed by parties that the mesne profits and compensation should be assessed at a round figure of Rs. 1,600, in case the application of the defendants was allowed. The learned Judge has accordingly granted this amount to the defendants. The plaintiffs came up in appeal to the High Court, and the Bench before which the case came up first for hearing preferred it to a larger Bench in view of a considerable conflict of opinion that prevails in the various High Courts. The two main questions which arise in this case are : (1) whether the proceeding under Section 144, Civil P.C. is an execution proceeding, and (2) the point of time from which limitation would begin to run.

3. It is obvious that if the proceeding were an execution proceeding then Article 182, Limitation Act, would be applicable and there would be a fresh start for purposes of limitation from the date of the High Court's decree and the application would therefore be well within time. On the other hand, if it be not an execution proceeding then obviously Article 182 would not apply, and in the absence of any other particular article the residuary Article 181 would be applicable under which the period of limitation would begin to run from the date when the right to apply accrued. The question would then arise whether the right to apply accrued on the passing of the lower Court's decree which reversed the first Court's decree or from the time of the High Court's decree which finally upheld that reversal. So far as the rulings of this Court are concerned there seems to be a uniformity that the proceeding cannot be regarded as an execution proceeding. No doubt different opinions have been expressed in other High Courts, but there too there is considerable divergence. In these circumstances, unless a very strong case were made out for overruling the decisions of this Court, I would not be prepared to depart from the view taken in a series of decisions of this Court.

4. Briefly speaking, it was first pointed out by Walsh and Ryves, JJ., in Hanifun-nessa v. Chunni Lal A.I.R. 1921 All. 321, that the prayer for restitution being not exactly identical with a prayer for the execution of a decree the form prescribed for an application for execution of a decree was not a suitable form. The learned Judges pointed out that either a suitable form should be issued or applications should be framed in appropriate language with the appropriate claim for relief before proceeding to adjudicate upon them. The question arose directly in Jiwa Ram v. Nand Ram A.I.R. 1922 All. 223, before Lindsay and Rafiq, JJ. Lindsay, J., in pronouncing the judgment of the Court pointed out that proceedings under Section 144, Civil P.C. cannot properly be described as proceedings in execution of a decree which was made clear by a comparison of Section 144 of the present Code, with Section 583 of the Code of 1882. The learned Judge pointed out the changes that have been introduced into the new section and remarked:

The language of Section 144 is very different and we now find no mention regarding any application to be made for the purpose of executing the decree nor do we find any direction laying down that such proceedings are to be regulated by the rules prescribed for the execution of decrees in suits.

5. It was further pointed out that the language of Section 144 was very wide and the Court was empowered to make any orders including orders for refund of costs, payment of interest, damages, compensation and mesne profits which are properly consequential on the variation or reversal of the decree. The learned Judge doubted whether a Court which was merely executing a decree could be deemed to be invested with such extensive powers. In view of the difference in the language of the new and the old sections, the learned Judge held that proceedings for restitution were not proceedings in execution of any decree and expressly dissented from the contrary view expressed by the Madras High Court in Somasundaram v. Chokkalingum A.I.R. 1917 Mad. 185. The other learned Judge concurred in this view. The question of limitation did not however arise in that case. But that case is certainly an authority for the proposition that an application under Section 144, Civil P.C. is not an application for execution of any decree. Walsh and Ryves, JJ., in Brijlal v. Damodar Das A.I.R. 1922 All. 238, followed the ruling in Jiwa Ram's case A.I.R. 1922 All. 223, and held that an application for restitution under Section 144, Civil P.C., in pursuance of an order of His Majesty in Council was not an application in execution governed by Article 182, Limitation Act, but was an application falling under Article 183, Limitation Act. It is not necessary to consider in this case whether an application for the execution of an order in Council is one which would fall under Article 182 or under Article 183, Limitation Act. In Baijnath Das v. Balmakund : AIR1925All137 , Daniels, J., held that an application for restitution Under Section 144, Civil P.C. is not an application in execution. He followed the previous rulings of this Court and also referred to a Full Bench ruling of the Patna High Court in Bal Makund v. Basanta Kumari Dasi A.I.R. 1925 Pat. 1. To this I shall refer later.

6. The latest case of this Court is Dhapo v. Bakridi : AIR1932All609 , which is directly in point as regards both the questions which arise in this case. Mukerji and Bennet, JJ., held that an application for restitution under Section 144, Civil P.C., was not an application for execution to which Article 182 could apply, but was an application which fell under Article 181, Limitation Act. The learned Judges held further that the time to be reckoned under Article 181 should be counted from the date of the decree of the lower appellate Court and that the applicant was not entitled to get deduction of the period occupied by the appeal to the High Court. The earlier cases of this Court were not expressly referred to, but the opinion was based on a Full Bench case of the Calcutta High Court in Hari Mohan Dalai v. Parmeshwar Sahu : AIR1928Cal646 . An earlier Patna case was distinguished on the ground that there the application for restitution had' been made within three years of the date when delivery of possession had been made in favour of the applicant and was therefore well within time. In any case, the learned Judges preferred to follow the Calcutta case which was in accordance with their own opinion.

7. It is not necessary to refer to cases, under Article 183 where it has been held that an application for the execution of an order of His Majesty in Council falls under Article 183, Limitation Act : see Brij Lal v. Damodar Das A.I.R. 1922 All. 238 and Sohan Bibi v. Baijnath Das : AIR1928All293 . The opinions in the other High Courts, as already remarked, are hopelessly divided. It is possible to find a set of rulings in support of any view that may be advanced. I therefore do not propose to examine these rulings. But I must point out that, with the exception of the Full Bench case of the Patna High Court to which I shall presently refer, in none of the cases in which it has been held that an application under Section 144 is an execution application has the true nature of an application for restitution been considered at length.

8. In the first place, it seems to me that there is an essential difference between an application for execution of a decree and an application for restitution on the reversal of a decree of the first Court. A decree is supposed to be self-contained and an executing Court merely executes the decree and carries out 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 the 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.

9. In the Full Bench case of the Patna High Court in Balmakund Marwari v. Basanta Kumari Dasi A.I.R. 1925 Pat. 1, where also there was no unanimity, Das, J., who delivered the judgment first rightly drew attention to the fact that the nature of the application is the first point to be considered and that the origin of the jurisdiction to grant restitution is not merely any direction contained in the appellate Court's decree, but is a necessary consequence of the duty of the Court to compensate for the injury done by its own act, whereas the jurisdiction of the executing Court is based and is dependent entirely on the appellate Court's decree itself and there is no further duty on the Court than merely to execute it, however wrong the decree might really be. The learned Judge quoted the observation of Lord Carson, L.C.J., in Jai Barham v. Kedar Nath Marwari A.I.R. 1922 P.C. 269, that

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 up to the highest Court which finally disposes of the case.

10. In the second place, the scheme of the present Code seems to be that all inquiries as to questions of fact should be completed before the decree is passed. Provision has been made for preliminary decrees and final decrees. Under the first, the rights of the parties are settled and determined. Before the final decree is passed the exact amount of liability is also ascertained and fixed. Proceedings in execution, which follow, merely carry out the decree and do not involve any further investigation as regards any matters in controversy. The nature of a restitution proceeding however is quite different. There the point which arises for inquiry could never have been raised in the suit itself and has never been considered by any Court much less investigated. It is the Court in the execution department which is for the first time called upon to start such an inquiry. It is therefore to my mind a misnomer to call an application for restitution, consequent upon the reversal of a wrong decree, as an application for execution of the appellate decree which has reversed the first Court's decree.

11. In the third place, under the Code of t 1882 the language of Section 583, which corresponds to the present Section 144, was very specific and it allowed a party entitled to any benefit by way of restitution or otherwise under a decree passed in appeal desiring to obtain 'execution' of the same, to apply to the Court which passed the decree and such Court was bound to proceed to 'execute' the decree passed in appeal according to the rules prescribed for the 'execution' of decree in suits. On the language of that section there could be no doubt that the party was applying to obtain execution of the appellate Court's decree and that the decree had to be executed according to the rules prescribed for the execution of decrees in suits. The section was open to the construction that when a person is applying for obtaining benefit by way of restitution he is in effect applying for the execution of the appellate decree, which is in his favour. This also obviously was an anomaly. Even though the language was so specific there was a difference of opinion at least between two High Courts. The Allahabad High Court held that the application for restitution was an application for execution to such an extent as to make Section 244 of the old Code applicable to it and so as to bar a fresh suit : Sheodihal Sahu v. Bhawani (1907) 29 All. 348. Whereas the Calcutta High Court held that the application for restitution was not in reality an application for execution and therefore although section 583 applied to it in express terms, Section 244 did not apply and therefore a separate suit was not barred Motiram Martvari v. Ram Kumar Marwari (1908) 35 Cal. 265.

12. In order to set this conflict at rest the Legislature has intervened. The old Section 583 has been very drastically changed. All references to execution have been carefully deleted. Now there is no longer any question of obtaining execution of the appellate Court's decree nor is there any provision that the Court should proceed to execute the appellate Court's decree according to the rules prescribed for the execution of decrees. Much wider powers also have been conferred under Section 144. No doubt it is true that even under the old section this Court had held that in ordering restitution interest on the amount refunded should also be allowed in fairness and equity. But the language taken literally did not perhaps warrant it. Under the present Section 144 the Court is not only bound to cause 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 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 powers are therefore very wide and they include compensation by way of damages as well as payment of interest and mesne profits the payment of which would not be directed by the appellate decree. The Court is empowered to place the parties in the position which they would have occupied, but for the wrong decree passed, which has been subsequently reversed.

13. It seems to me that such a radical change in the phraseology of the two sections cannot but indicate that the Legislature itself realized that it was a misnomer to call an application for restitution an application for the execution of the appellate Court's decree. Indeed, an appellate Court's decree would never direct things to be done which the applicant calls upon the Court to do. Very often the fact that delivery of possession has been taken in the meantime may not even be brought to the notice of the appellate Court. Such a state of affairs may never be in its contemplation. Even if it is informed of it, the appellate Court ' would never pass any directions with regard to the restoration of the property. It would take it for granted that restoration would be allowed as a matter of course. It therefore cannot be said that an appellate Court's decree which merely reversed the first Court's decree itself directs the restitution of some property and the award of compensation, costs, interests or mesne profits. It is not by way of executing the appellate Court's decree that restitution can be had. It is the benefit or the result which flow from the appellate Court's decree which is availed of and is not the execution of the decree itself. It is this recognition which in my opinion has resulted in placing an application for restitution of property in a separate category, distinct and different from that of an application for execution.

14. In the fourth place, if we examine the provisions in Order 21, Civil P.C., which deal with applications for execution we find that there is no reference whatsoever to an application for restitution. The form for an application for execution of a decree under Order 21, Rule 11, would, as pointed out by Walsh and Ryves, JJ., be wholly unsuitable and inappropriate for an application for restitution. Rule 11(g) which lays down that the particulars of the amount with interest, if any, due upon the decree or other relief granted thereby should be mentioned in the application would be quite out of place and so would be the amount of costs awarded by the decree under Sub-clause (h). This amount can be obtained by the real execution of the appellate Court's decree which is different from restitution. The amount of interest due under the decree and the amount of costs awarded are definite and ascertained amounts, whereas the amount which the applicant wants the Court to assess is still unliquidated.

15. Now it may be said that the change in the phraseology of the section is merely because all reference to execution in the old section was superfluous and the Legislature has merely deleted what was redundant. But, on the other hand, it may well be urged that there has been a deliberate alteration in order to clarify the position and make it clear, as was to my mind quite obvious if we bear in mind the true nature of an application for restitution, that the restitution is not in any sense whatsoever an execution of the appellate Court's decree. In the fifth place, if it was merely the intention to change the section in order to provide expressly that a separate suit would be barred there need never have been any occasion for a complete alteration of the provisions, but a mere proviso added at the end to that effect would have amply served the purpose. I must refer to the case of Prag Narain v. Kamakhia Singh (1909) 31 All. 551, decided by their Lordships of the Privy Council which has been referred to in the course of the arguments. In that case their Lordships held that there was no substance in the contention that a separate suit was necessary in order to obtain relief by way of restitution and that the claim to have the questions in dispute determined in the execution proceedings was justified by Sections 583 and 244, Civil P.C. Their Lordships further remarked, that:

Even if the point were doubtful, their Lordships would not be disposed at that stage of the proceedings, to permit the expense and delay of a separate suit.

16. Their Lordships did not there lay down that an application for restitution is identically the same thing as an application, for execution. Their Lordships merely overruled the contention that restitution could not be sought for in the execution department, but that a separate suit was necessary. Their Lordships thought that in view of the provisions of Sections 583 and 244 taken together, there was no need for a separate suit; in any case, their Lord-ships would not tolerate such a suit which would involve expense and delay. In the sixth place, there is a clear distinction, drawn by the Legislature between an order passed under Section 47 for the execution of a decree and an order passed under Section 144 for restitution. This is apparent from the definition of the word 'decree' in Section 2 where it is said to include not only the determination of any question within, Section 47, but also the determination of any such question within Section 144. If both these things were execution it would have been enough to say 'the determination of any question in the execution of the decree.' But in this connexion I do not wish to emphasize the fact that there are separate headings under which Sections 47 and 144, Civil P.C. occur. The first comes under the heading 'questions to be determined by a Court executing a decree,' and the second under the heading 'Miscellaneous' in a separate part, because the proper place to refer to restitution would naturally be after the provisions for appeals, references, reviews and revisions have been laid down.

17. In the seventh place, I am not at all impressed by the argument which has been accepted by some learned Judges that the new Civil Procedure Code, and the new Limitation Act, were passed about the same time and that it could not have been intended to make radical alterations in the Code when there were no material changes in the Articles of the Limitation Act. If we compare the present Coda with the old Civil Procedure Code, we find enormous changes. We also find a clear and marked distinction between preliminary and final decrees. Now, the suit continues up to the passing of the final decree even though a preliminary decree has already been passed. Again under the old law the ascertainment of mesne profits could be relegated to the execution department. The decree was complete in itself, and yet the executing Court could ascertain the mesne profits; but this is not now allowed under the new Code and the Court has itself to ascertain the amount of mesne profits. Though in the first instance it must pass a preliminary decree and then follow it up with a final decree, yet the ascertainment of mesne profits is not to be relegated to the execution department. Similarly the taking of accounts is not now to be postponed to the execution department. Amounts due on mortgages in suits for sale, foreclosure or redemption cannot now be postponed to the execution department. The Court must ascertain the amount due before passing a final decree. Applications for a final decree are now governed by article 181 and not Article 182. It may well be that in view of these changes, too numerous to mention, there may be many cases in which articles of the Limitation Act, which were applicable under the old Code have altogether ceased to be applicable to applications under corresponding sections in the new Code. Such a result is, to my mind, no good ground for shutting our ayes to the language of the new section and holding that in spite of all the radical changes there has in reality been no change at all.

18. In the eighth place, I see no great force in the contention that there are some provisions in the Limitation Act, which may not be availed of if it be held that an application for restitution is not an application for execution. It is pointed out that Section 6, Limitation Act, applies to suits and applications for execution, but not to other applications. It is further pointed out that in Article 182 there are various facilities allowed to a decree-holder who gets many afresh start of time which may not be available to a person applying for restitution. I see a clear distinction between the right to obtain a decree or order and the right to realise the amount so decreed or ordered. In the case of suits there is no special facility allowed to a plaintiff and he has to be prompt as the defendant. It is only after a decree has been obtained and there is delay in the payment by the defendant that a decree-holder is allowed time up to 12 years provided he fulfils certain required conditions. On analogy it may well be urged that the right to obtain an order under Section 144, Civil P.C. is analogous to the right to obtain a decree and no special facilities are called for so far as that relief is concerned. But once an order has been made, the delay in realising the amount might be condoned on grounds similar to those allowed to decree-holders executing their decrees. Again, as regards the deprivation of the right of a minor to avail himself of his minority in the case of art application for restitution, it might well be pointed out that there is no similar right as regards appeals. When a suit brought by a next friend is dismissed and the next friend does not appeal from the decree, the minor has no remedy and he cannot, after attaining majority, prefer an appeal. On the same principle, if the next friend has appealed and got the decree reversed he should proceed to obtain the benefit of it by applying for restitution. If he fails to do so there is nothing illegal if a minor does not get an advantage which he did not possess as regards the appeal itself. I admit that it would be much better and certainly fairer to allow him to have the same advantage as an ordinary decree-holder. But I am not legislating, and I must take the sections as I find them and interpret them according to their natural meaning. If there is any case of hardship it is for the Legislature to intervene and remove it.

19. Equitable considerations cannot be invoked in the case of a plea of limitation. The bar of limitation is purely arbitrary. It is sometimes harsh and it is very often regarded as inequitable. We have to enforce the bar because the legislature has cast a duty upon the Courts to see that suits and applications are within time. We have no option in the matter, and it would not be a proper way of interpreting an article of the Limitation Act, by rejecting a particular interpretation, though following logically from the language implied on the ground that it would create a great hardship. Lastly, it has been suggested that even if the word 'execution' be taken in its literal sense in the Civil Procedure Code, a wider and more liberal meaning should be given to the word in the Limitation Act, because the Legislature, although it amended the provisions in the Civil Procedure Code, did not amend the sections and articles in the Limitation Act. It is therefore argued that the intention of the Legislature must have been that the same article of the Limitation Act, which was applicable to applications for restitution before 1908 must continue to be applicable even under the new Act. But this argument cannot hold water. I have already referred to cases of mortgage debts, mesne profits and accounts. Let us for a moment consider again the case of the preparation of a final decree. Under the old Code the decree for sale or foreclosure or redemption was complete in itself and had merely to be executed. Under the new Code it is only a preliminary decree that is passed in the first instance and a final decree has to be passed on application made by the successful party. It has been held by all the Courts in India unanimously that Article 181 applies to the application for the preparation of a final decree in a mortgage suit. The corresponding article under the old Act could never have been applicable to such decrees. The argument mentioned above cannot therefore be accepted. In interpreting therefore whether the application for restitution is, under the Civil Procedure an application for execution, I would not be justified in assuming that there was necessarily an intention in the mind of the Legislature that the old article, or to be more accurate, the newly numbered article corresponding to the old article would still remain applicable. In view of the conflict of opinion in other High Courts and particularly in view of so many points that can be urged in support of the view which has so far been taken in this Court, I am not prepared to over-rule the decisions of this Court which have now stood for over 12 years, and l must hold that on a correct interpretation of the sections in the Civil Procedure Code, an application for restitution is essentially a different thing from an application for execution. It follows therefore that Article 182 would not be applicable to such an application, but it must be governed by the residuary Article 181.

20. The next question is as to the starting point of limitation under Article 181. On this point there is no stare decisis in this Court. The first three cases referred to by me did not touch on the question of limitation. In the last case the starting point for the purposes of mesne profits was taken to be the date of the lower appellate Court's decree. The case was based principally on the opinion expressed in the Full Bench case of Hari Mohan Dalai v. Parmeshwar Sahu : AIR1928Cal646 . That case, when closely examined will in its turn be found to be based solely on certain inferences to be drawn from the observations made by their Lordships of the Privy Council in the case of Juscurn Bold v. Pirthi Chand Lal A.I.R. 1918 P.C. 151. It is therefore convenient to begin with the last mentioned Privy Council case itself. Previously in Hanuman Kamat v. Hanuman Mandu (1892) 19 Cal. 123, their Lordships of the Privy Council had held that for a suit to recover money paid upon failure of consideration the consideration could not be said to have failed at once at the time of the receipt of the purchase money, but that it failed, at all events, when the purchaser, being opposed, found himself unable to obtain possession. When a person has paid money in lieu of receiving property the failure of consideration arises on the date when he fails to receive the property. This is so, irrespective of any pronouncement that may be made in any subsequent suit that may be fought out. The case of Juscurn Boid A.I.R. 1918 P.C. 151 was a very peculiar case. The claim for recovery of money was based on a supposed failure of consideration and the Courts below had taken it for granted that it was such a claim, namely one for money paid upon an existing consideration which afterwards failed. Their Lordships, while referring to the peculiar character of the sale under the Bengal Regulation, pointed out that it was manifest that if regard be had to it, the facts, but imperfectly fitted the phrase and they perhaps more nearly approached the formula of money had and received by the defendant for the plaintiff's use.' But in view of the course the suit had taken and the attitude on both sides their Lordships thought that they must proceed on the assumption that for the purposes of that appeal without affirming its correctness, that suit came within the terms of Article 97, Limitation Act. Their Lordships further pointed out that Section 14 authorized a suit against a zamindar for the reversal of a sale under the regulation and it expressly provided that

the purchaser shall be made a party in such a suit and upon the passing of a decree in such a suit the Court shall be careful to indemnify him against all loss at the charge of the zamindar or a person at whose suit the sale might have been made.

21. Thus, it was the duty of the trial Court itself upon the reversal of the sale to indemnify the plaintiff against all loss suffered by him. The question accordingly arose whether, supposing the suit for recovery of the amount which had been paid to the zamindar wrongly, fell under Article 97, Limitation Act, time began to run from the date when the sale was reversed by the first Court and that Court indemnified the plaintiff, or whether time was suspended and did not begin to run till that order was affirmed on appeal. It was, in the peculiar circumstances of that case, that their Lordships held that the reversal amounted to a failure of consideration, but their Lordships were further careful to point out that the suit was one of first impression and in the absence of more complete information as to the curses curiae in India their Lordships would not say more than that the question would demand careful consideration should it arise thereafter. It seems to me that the question, when consideration fails, is quite a different question from the question when a decree is reversed. The failure of consideration arises under the Contract Act, and as pointed out by their Lordships in Juscurn Boid's case A.I.R. 1918 P.C. 151 at (p. 679, there may be circumstances in which a failure to get or retain possession may justly be regarded as the time from which the limitation period began to run, but that was not the case before their Lordships. It would therefore not be appropriate to apply the analogy of the case which turned on the question of a failure of consideration, to the case of restitution, which, in my opinion, is far more analogous to execution than to failure of consideration. It has also more resemblance to final decrees passed after the ascertainment of the actual amount due, than to the right to recover an amount which was paid on an existing consideration which subsequently failed. Apart from the case of Jusourn Boid A.I.R. 1918 P.C. 151 no other case has been cited before us by counsel which would suggest that the starting point of limitation under any other article of the Limitation Act is the first Court's decree and not the final decree passed in appeal. Cases under Article 97 are not necessarily in point when we have to consider the applicability of Article 181.

22. Now, in cases of mesne profits their Lordships of the Privy Council held that Her Majesty's order was the only operative decree and that mesne profits were in effect decreed by the order with reference to its own date and not to that of the original decree. The case can of course be distinguished from the present case because under the old Code, inquiry could be postponed to the execution department, but it must also be pointed out that the decree itself had awarded the plaintiff future and mesne profits. In cases arising under mortgages the view which has been held by two Pull Bench cases in this Court is that on the passing of a preliminary decree by the lower appellate Court, a final decree can be prepared in terms of it even though an appeal is pending in the High Court, but that such a decree would not prevent the decree-holder from applying for a fresh final decree in terms of the High Court's decree passed finally on appeal, and that time for such final decree would begin to run from the date of the High Court's decree and not from the date of the lower appellate Court's decree. In Gajadhar Singh v. Kishan Jiwan Lal A.I.R. 1917 All. 163, Banerji, J., observed that when an appeal has been preferred it is the decree of the appellate Court which is the final decree in the cause. He referred to two Full Bench cases of this Court in Shohrat Singh v. Bridgman (1882) 4 All. 376 (F.B.), which was a case of execution, and Muhammad Sulaiman Khan v. Muhammad Yar Khan (1889) 11 All. 267 (F.B.), which was a case of an amendment of a decree. In both these cases it had been held that the operative decree is the decree passed finally by the appellate Court. The learned Judge observed that when an appeal is preferred and the casa is decided by the appellate Court the decree of the appellate Court takes the place of the decree of the subordinate Courts where it affirms the decree of those Courts and the decrees of the subordinate Court are merged in the decree of the final Court of appeal. No doubt at one place it was stated that there could not be more than one final decree in a case, but I doubt very much whether the learned Judge intended to hold that it is not open to a successful plaintiff to obtain a final decree in terms of the preliminary decree passed by the lower appellate Court because an appeal is pending in the High Court. Tudball, J., also held that if an appeal is preferred the final decree is the decree of the appellate Court of final decision. Of course, it is that decree which can be made final in the case between the parties for it will supersede every other decree. Piggot, J., concurred in these conclusions.

23. The Full Bench case was approved of by their Lordships of the Privy Council in Jawad Hussain v. Gendan Singh A.I.R. 1926 P.C. 93. Their Lordships quoted with approval passages from the judgments of Banerji and Tudball, JJ., and obviously accepted the view that the appellate Court's decree supersedes the first Court's decree. Recently another Full Bench case of this Court in Sat Parkash v. Bahal Rai : AIR1931All386 , has now made it clear that where in a mortgage suit a preliminary decree has been passed by the trial Court and an appeal has been preferred, a final decree can be prepared by the trial Court at the end of the period allowed for payment of the mortgage debt. A further final decree can be prepared in terms of the decree of the Court of final appeal.

24. The result therefore is that a final decree can be prepared in terms of the preliminary decree passed by the lower appellate Court and there is nothing to prevent a mortgagee from obtaining such a decree even though a second appeal is pending. Nevertheless when the second appeal is decided it is open to him to apply afresh for a final decree on account of the High Court's decree, even though the High Court's decree may have simply affirmed the lower appellate Court's decree without even extending the time for payment or ordering fresh costs. I therefore see no difficulty in holding that the first Court's decree becomes absolutely merged in the appellate Court's decree and that although in one sense the lower appellate Court's decree reversed the decree of the first Court there has been again a reversal of the first Court's decree on account of the decree passed finally on second appeal.

25. We are not here dealing with private contracts or agreements between parties. For instance, it was remarked by their Lordships of the Privy Council in the case of Lasa Din v. Gulab Kunwar , that:

If in the Indian cases the question were 'when did the mortgagee's cause of action arise?' i.e., when did he first become entitled to sue for the relief claimed by his suit, their Lordships think that there might be much to be Raid in support of the Allahabad decisions, namely that the right would accrue on the first default.

26. Now, the oases of payment by instalments or cases of successive defaults stand on quite a different footing. It is impossible to say that the first default gets merged into the second default and is completely superseded by it. In such a case if there is a private contract between the parties that the right to sue would accrue on the first default and not that the money would become due as payable that right accrues and limitation begins to run though a subsequent default also takes place. But the danger of applying the same principle to different oases under different articles of the Limitation Act is patent from their Lordshipsr own decision. When considering the same point in connexion with Article 132 their Lordships held that the money had not become due on the first default, but that it was open to the mortgagee who had the option not to enforce his security at once, but to stand by his investment for the-full term.

27. In a very exhaustive and learned judgment Rankin. C.J., in Hari Mohan Dalal's case : AIR1928Cal646 , came to the conclusion that limitation would begin to run under Article 181, Limitation Act, from the date of the lower appellate Court's decree. The learned Chief Justice conceded that there were numerous cases in which it was held that the appellate Court's decree was the only decree which can be amended or which can be reviewed or which can operate as res judicata or which can be made final and absolute or which puts an end to the period for which mesne profits can be ascertained and that indeed there were decisions of the Judicial Committee covering most of these points. But the learned Judge felt himself bound by the pronouncement made in Juscurn Boid's case A.I.R. 1918 P.C. 151, referred to by me above and therefore held that the mere fact that the decree was subsequently affirmed on appeal did not either interrupt limitation or give a fresh start of limitation.

28. To my mind there is a fundamental distinction between rights based on private contracts and rights arising under statutory enactments. As I have already pointed out above in the case of agreements it is impossible to say that the first default is merged into the second default whereas a decree cannot really be said to have been reversed until it is finally settled that it should stand reversed. It is the pronouncement of the highest Court of appeal reversing the decree of the first Court which is the only operative and final decree and which finally reverses the decree. It is not a case of a mere reversal of a sale in which case the reversal must take place with effect from the date when the first Court set aside the sale, but it is the case of a reversal of a decree which to my mind cannot be completely reversed unless the matter is finally settled. Accordingly if there are appeals pending there is a reversal, but that is only temporary and provisional, it being uncertain what the final Court of appeal would decide. The reversal be comes certain by virtue of the decree of the final Court and, is only then conclusive between the parties.

29. I am therefore of opinion that the expression where in so far a decree is varied or reversed' which occurs in Section 144, it must mean where the decree is reversed either temporarily or finally. No doubt a successful party is entitled to apply for restitution immediately after there is a temporary or provisional reversal, but if he chooses to wait till the reversal is complete and absolute he would nevertheless be in time if he comes in within the prescribed time from the date when the decree is finally declared to be reversed without any further question or doubt. There is indeed no authority for the contrary view. The case of failure of consideration has already been discussed by me and with the solitary exception of that case which is clearly distinguishable and which was peculiar having regard to its special circumstances, there is no authority for the proposition that there is not a fresh start for a successful party as a necessary result of the pronouncement of the final Court of appeal. It seems to me that it is open to a successful party to apply for restitution after it has been definitely settled by the highest Court of appeal that the first Court's decree was wrong.

30. Now, the next question is whether the right to restitution is a right to be restored to the status quo or, in other words, to be placed in the same position which a party would have occupied, but for a wrong decree or such part thereof as has been varied or reversed. It includes not only the restoration of the property which has been taken in execution of a decree and the refund of the amount which has been paid, but also full compensation including costs, damages and mesne profits. These are amounts which cannot be definitely ascertained. Only two things are known, first, the period during which the loss has been suffered and secondly the basis on which compensation is to be awarded. So long as the period is uncertain, even the basis would remain uncertain. I would therefore think that the right to apply for restitution would really arise after it has been known what is the basis of the assessment of compensation and what is the period for which compensation has to be awarded. So long as the property has not been restored the mesne profits cannot be ascertained definitely, although an approximate assessment can certainly be made in advance, but it can never be exact. I would not like to split up the right to claim restitution into separate water-tight compartments classifying them into a right to recover back the property and a right to get compensation. There is in execution the right to recover future compensation upto the date of the application and the right to recover future compensation till the date of delivery of possession. It seems to me that it is one consolidated right, and it is open to the successful party to apply for restitution claiming all the reliefs at one time after the matter has been finally settled by the highest Court of appeal. If this view be correct, then the present application would certainly be well within time, because it was made within three years of the passing of the High Court's decree.

31. But even if this view be not accepted, I see considerable difficulty in holding that an application for mesne profits must be made within three years of the date of the lower appellate Court's decree, which reversed the first Court's decree. As I said, it is impossible to assess mesne profits exactly until the exact period is known, and it is therefore difficult to hold that time has already begun to run against the successful party for an application for recovery of mesne profits while the mesne profits themselves have not yet become due. To say the least, time cannot begin to run till after the date when the possession has been restored to the successful party, because it is only on that date that the definiteness of the period is fixed. I would therefore even if I were not of opinion that time did not begin to run till after the passing of the High Court's decree, certainly hold that time did not begin to run till after the possession was delivered to the defendants. The only difficulty in this view would be as regards the standing crops which existed at the time when possession was taken by the plaintiffs. If I did not adhere to the first view, I would then be compelled to hold that the right to apply for the value of the standing crops would be coincident with the right to apply for restoration of the property itself, and in such a case time would begin to run from the date of the lower appellate Court's decree. I am however distinctly of opinion that there is no justification for holding that time began to run against the successful party before the passing of the decree by the highest Court of appeal.

32. I would therefore dismiss the appeal.

Mukerji, J.

33. This appeal bristles with difficulties. In view however of the great conflict of judicial opinion that exists on the several questions involved, I would as far as possible, confine myself to an examination of the principles on which the case ought to be decided. The authorities do not lend much light on account of the divergence of opinion.

34. The facts, so far as we are concerned with them, are that the appellants or some of them and the predecessors in title of the others brought a suit for recovery of 35 bighas odd land against the respondents in this appeal. The suit was decreed by the Court of first instance on 31st January 1925. As soon as the decree was passed in favour of the appellants, they took possession of the land decreed, to them, on 5th March 1925. The respondents appealed, and the learned District Judge reversed the decree of the first Court and dismissed the appellants' suit on 17th February 1926. Thereupon, the respondents applied for delivery of possession, asking that they should be restored to their land, and they were put in possession on 5th October 1926. The appellants had filed an appeal to the High Court, and it was discussed on 13th June 19/29. Thereafter the application out of which the present appeal has arisen was made, on 2nd September 1929, by the present, respondents, asking for : (1) the value of the crop that stood on the land in suit on 5th March 1925, when the present appellants took possession, and (2) for mesne profits that accrued due for the period between 5th March 1925 and 5th October 1926. The total claim was assessed at a very large figure, namely Rs. 14,000.

35. The first Court dismissed the application as being barred by time and as not being maintainable at all. On appeal by the present respondents, the learned Judge has allowed the application, holding; that it was maintainable and that it was-not barred by time. Before the appellate Court the question of amount of the value-of the crops and mesne profits was settled' by agreement and counsel for the parties agreed that in case of the appeal succeeding, the then appellants (the present respondents) should be granted a decree for Rs. 1,600. Evidently no distinction was, made between how much out of Rs. 1,600, represented the value of the crop that is alleged to have stood on the land in suit on 5th March 1925 and what was the value of the profits that the present appellants derived from the property and-which the present respondents were entitled to recover by way of mesne profits. It may be that there was no crop standing on the land in suit on 5th March 1925, or it may be that the whole of Rupees 1,600 represents the value of the crop and nothing was meant to be allowed as mesne profits.

36. In this appeal it has been contended on behalf of the appellants that the application was time-barred. It was also urged at the close of the argument that at least the respondents' claim for the value of the crop standing on the land in suit on 5th March 1925, should be dismissed as time-barred, and we were requested to remit an issue in order to find out the said value. In view however of the fact that the counsel for the parties agreed that there should be a decree for a lump-sum in case of the present respondents success in the lower appellate Court, I do not think we can very well remit any issue on a question of fact. Now, the question before us is virtually this : Whether Article 182, Limitation Act, applies to an application like the present one, that is to say, whether for the purposes of application of Article 182, an application for restitution should be held to be included in the words:

application for execution of decree or order of any civil Court not provided for by Article 183 or by Section 48, Civil P.C. 1908.

37. I want to consider the entire position from the point of view of the question before us and not from any other point of view. This is important to mention because even a child can understand that an execution pure and simple and a restitution pure and simple are not one and the same thing. Restitution is restitution and execution of a decree is execution and nothing more. If the matter were so simple, there would be no difficulty at all. But unfortunately the matter is not so simple, and the very fact, that there is so much divergence of judicial opinion, establishes the difficulty. I want to be clearly understood, before I proceed further with an examination of the question before me, that my attempt at interpretation is not based on any idea of mitigating a hardship that may be supposed to follow from not including an application for restitution pure and simple within the description of the application mentioned in Article 182. As the saying goes, hard cases make bad law. But, on the other hand, it is also clear, that if we put an interpretation on a language which is doubtful, an interpretation which works in nothing but hardships, we are certainly entitled to say, that that interpretation should not be accepted and if possible any other interpretation, that is not quite foreign to the language used by the statute, should be adopted.

38. The rule as to restitution is to be found in Section 144, Civil P.C. Now, this rule, although put down as a rule of substantive law, is virtually a rule based on eternal justice on the principle that no Court of justice should act in a manner that may prejudice a litigant. Long before the rule as to restitution was drafted in the language contained in Civil Procedure Code of 1908, in Section 144, it had been ruled in England that it was the duty of a Court, when its judgment is reversed by a superior Court, to restore the party, who is ultimately successful, to the same position, which he would have occupied but for the decree which has been subsequently reversed. This view is expressed in Rodger v. Comptoir D'Escompte De paris (1871) 19 W.R. 449. On an application of this principle of eternal justice, this Court in several cases allowed interest on his money to the party, who ultimately succeeded in appeal, where he had been made to pay an amount of money under a decree, which was subsequently reversed, though Section 583, Civil P.C. of 1892, made no provision for award of interest.

39. Now, the question is what is the nature of an application for restitution. I consider that, roughly, the proceedings arising out of a suit may be divided under two heads: proceedings in the suit, that is to say, proceedings prior to the decree, which word includes both the preliminary and the final decree, and proceedings that follow the decree. The rule as to restitution says that when there have been two conflicting decrees and the lower Court's decree has been reversed or varied by the appellate Court, then parties are to be restored to their original position, as if the first Court's decree had never been passed. Now, how did the party, who was successful in the first Court, obtain his relief? In this case, how did the appellants before us obtain possession of the 35 bighas of land? They obtained by execution. The decree of the District Judge did not take cognizance of the fact that between the passing of the decree of the Court of first instance and the making of the second Court's decree, something had happened, namely delivery of property to the plaintiffs in pursuance of the first Court's decree. The appellate Court's decree simply said that the suit must be dismissed. The only way to execute that decree would be to put the defendants back into possession. Strictly speaking, if we strictly follow the language of the appellate decree, and disregard the spirit of that decree, the defendants by execution of that decree should get nothing. Although the suit of the plaintiffs is dismissed, the plaintiffs have got what they wanted, and the appellate Court's decree does not say that the defendants are to be restored possession. But this is a state of things that cannot be tolerated. Therefore by virtue of the two decrees and in pursuance of exercise of eternal justice, the parties should be put in such a position, that the second Court's decree should fully operate. This can be done only by putting the defendants back into possession. If we look at the whole thing in this way, we see that the first Court on whom falls the duty of restoration, does nothing, bat proceeds by way of execution. It was by execution of the decree that it put the defendants in possession. It is by complying with the decree of the second Court that it puts the defendants back into possession. The essential nature therefore of an application for restitution is an application for execution.

40. In this view, it is not necessary to examine the actual language of Section 144; it will be enough to say that it is incumbent on the Court of first instance to cause restitution and to follow all or such of the methods as are pointed out in Section 144 for the purposes of making the restitution effectual. If we go back to the state of the law as it existed before the Civil Procedure Code of 1908 was passed, we find that Section 583, Civil P.C. of 1882, expressly said that the appellate decree was to be executed, either by way of restitution or otherwise in a manner prescribed for execution of decrees in suit.

41. It is very significant indeed that the several words relating to execution of decrees have been removed. The question is were they removed because the Legislature were satisfied that the proceedings could not be proceedings in execution, or because they were satisfied that those words were unnecessary. In my opinion, the latter view is the correct one. As I have stated, in an earlier part of this judgment, execution is execution and restitution is restitution; execution is not restitution and restitution is not execution. Although there is no substantial difference in the way in which a Court has to proceed either for execution or for restitution, the language of Section 583 had to be recast and, in my opinion has been properly recast. It has been pointed out that when the appellate Court reverses or varies the decree of the lower appellate Court, the parties should be put in their original position. It is not necessary for the purposes of Section 144 to say that the proceedings were analogous to an execution of a decree or order in the execution department. That position, in my opinion, followed from the nature of the proceedings, and express words were not necessary. In fact, use of the word 'execution' with the word 'restitution' was likely to confuse things rather than improve them. The object of the Legislature was that suits should be prohibited as far as possible where relief could be obtained in the execution department. This was not provided for in Section 583, Civil P.C., and provision to that effect was made in Section 144 of the present Act. Lest it should be feared that suits being prohibited and appeals being not allowed parties would suffer, it was provided in the definition of a decree that orders passed under Section 144 stood in the same position as orders passed under Section 47, Civil P.C., and both ware included in the definition of a decree. Let me now consider the position from the point of view of limitation. As I have already pointed out, Section 583, Civil P.C. expressly said that the proceeding was to be by way of execution. Accordingly with probably one exception all the High Courts held that proceedings by way of restitution were proceedings for execution within the meaning Article 179, Limitation Act of 1877. The Civil Procedure Code of 1882, and the Limitation Act of 1877 were re enacted in 1908 and with substantial changes. It is important to bear in mind that with the amendment of the Civil Procedure Code the Limitation Act was amended, so that the two might correspond to each other. It was urged at the Bar that the Legislature deliberately changed the nature of the application for restitution, and it is no longer a matter in the execution department. If that was the case, one would expect that the Limitation Act made some indication of that view, We find there is no specific provision whatsoever for an application for restitution. We are told that it was a new method of procedure adopted by the Legislature, and it is not covered by the present Article 182, Schedule 1, Limitation Act of 1908. I do not think that the Legislature could have ignored an important matter like restitution by not providing for it at all and by leaving it to be classed among those unnamed applications, which fall under Section 181 of the Schedule.

42. Now, the provisions in Article 182. Schedule 1, Limitation Act, indicate a good deal of anxiety on the part of the Legislature to safeguard the interests of the decree-holder. He is given numerous dates from which limitation is to run for the purposes of his application. They are numbered as 7, but really they are much more than 7 in number. The decree-holder is allowed to execute his decree within three years from the date of the decree; then he is allowed to take out execution within three years of the appellate decree or the final order passed by the highest appellate Court, and so on. The successful party in the Court of appeal is no less a decree-holder than the party who lost in that Court. His decree is more valuable than the decree which was pronounced to be wrong by the lower appellate Court. Yet we are told that the Legislature removed an application for restitution from Article 182 and yet made no provision for it, or it deliberately said that the three years' rule under Article 181 should apply. Now, what is the position? The position is that the successful party, the successful decree-holder, has, but a doubtful success. He has but one chance for his application. As I shall show later on Article 181 applying, the successful party's right to apply for restitution accrues when the lower appellate Court grants him a decree. If he does not apply within three years of that date, he cannot take advantage of a second appeal that may be heard and decided in his favour. Now, what is the fault of this party who has succeeded in the lower appellate Court, but has failed, to his misfortune, in the first Court? Was this unjust rule of limitation enacted deliberately or was this a mere omission? I cannot call it an omission, because the Legislature has taken care to put Section 144 with Section 47 in the definition of the decree. It was not negligent of the fact that there existed such a section as 144 in the Code. Then again let us look at Section 6, Lim. Act, as it allows a certain privilege to a minor. He can bring his suit or make his application for execution within a certain time which is not allowed to a mere adult. If an application for restitution be not covered by the words 'application for execution' in Section 6 or in Article 182, then a minor is simply undone, although he cannot protect himself. It was argued at the Bar that this apparent conflict may have been due to pure inadvertence on the part of the Legislature. But why should we assume an inadvertence on the part of the Legislature if we can and may, without any effort, reconcile the two Acts the Civil Procedure Code, and the Limitation Act and hold that an application for restitution is as much an application for execution as an application for execution strictly so called. For the reasons given above, I would hold that Article 182 is applicable to an application for restitution tinder Section 144, Civil P.C. In view of the fact that certain decisions of this Court do not agree with this view, I propose to examine the cases in this Court alone.

43. The earliest case on the point is that of Hanifunissa v. Chunni Lal A.I.R. 1921 All. 321. In this case there is no discussion as to whether Article 181 or 182 should apply. At p. 550 (of 19 ALJ), it was assumed that Article 181 would apply, I do not therefore consider that this case is any real authority on the question we have to answer. The case of Jiwa Ram v. Nand Ram A.I.R. 1922 All. 223, discusses the whole question and has surely been very helpful to me in arriving at my own conclusions. I may only say with all respect that this is a subject on which various views have been taken, and the views taken by the learned Judges in that case could very well be taken, but it is my misfortune not to be able to agree with them.

44. The next case is that of Brij Lal v. Damodar Das A.I.R. 1922 All. 238. This is a case in which the question was that rule of limitation would apply to an application for restitution which had to be made in view of the reversal by their Lordships of the Privy Council of the decree passed in India. There were the Articles 181, 182 and 183, to choose from. Their Lordships chose Article 183. That Article is slightly different from Article 182. Article 182 deals with an application for the execution of a decree; while Article 183 deals with an application to 'enforce,' a judgment, etc., of His Majesty in Council. There is not much difference between the words 'execution of a decree and ' enforcement of a decree.' To a layman the two words would mean the same thing. Yet their Lordships held that to obtain restitution under the Privy Council judgment, Article 183, which gives the large period of 12 years, should be applied. With all respect, this was the correct view to take. If the ultimate order were passed in India, I should have said, as I am saying now, that Article 182 would have applied. Now, in dealing with this case, at p. 460, the nature of the application for restitution was described as being in the 'nature of execution proceeding.' I do not want to make much of this statement; but the fact remains that two learned Judges were inclined to take the same opinion as I have expressed. The next case is that of Baijnath Das v. Balmakund : AIR1925All137 . In this case the only question for determination was whether the notification of the Government of India which remits court-fee in an appeal against an order passed under Section 47, Civil P.C. included an appeal against an order passed under Section 144, Civil P.C. This being the only point for determination, much of the remarks made there have no direct bearing on the question before me. Lastly I have to refer to the case of Dhapo v. Bakridi : AIR1932All609 , to which I was a party. In that case the question whether Article 181 or 182 applied was not discussed. There are, but two short sentences on the point in the judgment, and they say that the law in this Court was to the effect that Article 181 was to be applied. To quote the actual sentences, they are as follows:

To this application of Bakridi Article 181 applies. This is the view taken in this Court.

45. Apparently the question was not discussed and it was accepted by both the learned Counsel for the parties and the Judges that the previous law laid down in this Court should be accepted. If however my judgment in the aforesaid case be considered to be a pronouncement of my own, I am prepared entirely to change my opinion, because I have had the advantage of hearing elaborate arguments at the Bar in this case. In the view taken above, the application of the respondents would be amply within time. The next question is, supposing that Article 181, Limitation Act, applies, whether the limitation starts from the date of the first Court's judgment or from the date of the judgment of the lower appellate Court. So far as this point is concerned, the decision in Dhapo v. Bakridi : AIR1932All609 , does contain a considered opinion of myself and my brother Bennet, J. The judgment indicates that the discussion at the Bar was not very extensive and two important decisions of two High Courts were placed before us, and we were guided by our own independent opinion and also by the decision of the Calcutta High Court in Hari Mohan Dalai v. Parmeshwar Sahu : AIR1928Cal646 .

46. I have had the advantage of hearing very elaborate arguments at the Bar in the present case, and I have come to the conclusion that the decision of the first appellate Court should be the starting point of limitation, as held in the case just quoted. The law in India allows a successful party in the Court of first instance to execute the decree, even if an appeal may have been filed against it. Similarly the law allows the party, who had succeeded in the first appellate Court, to take out immediate execution without waiting for the decision of any second appeal that may have been filed in the High Court. This being the state of the law, it should follow that when the first appellate Court reverses or modifies the decree of the first Court, the party successful in the first appellate Court is entitled to take out execution. His right to take out execution, and therefore to apply for restitution would accrue within the meaning of the third column of Article 181 when the first appellate Court pronounces its decree. As a matter of fact, this is what has happened in this case. The defendants, who were successful before the District Judge, applied for execution and obtained delivery of possession on 5th October 1926. There was no bar to the defendants proceeding under Section 144 and they did proceed.

47. Now the question is if the 'right to apply' accrued to the defendants (present respondents) on pronouncement of judgment by the first appellate Court, can it be said that any fresh right to apply accrued to the defendants when the second appeal was decided by this Court on 13th June 1929? There is nothing in Article 181 itself to suggest that a fresh date for start of limitation would be conceded to the defendants. The argument at the Bar however was that it is the final decree that is the principal decree in the case, and it is that decree alone which can be executed. There can be no doubt that the proposition is true but only so far as it goes. We are not considering whether the final decree is not the decree which finally defines the rights of the parties; but the fact remains that it was open to the defendants to apply for restitution on an. earlier date and, unless the law postpones that right or gives a fresh right, the limitation must begin to run from the date when the right to apply first accrues.

48. The Lordships of the Privy Council in the case of Lasa Din v. Gulab Kunwar , made certain observations which, in my opinion, are very relevant to the present case. Their Lordships no doubt had to construe a certain bond and to find what would be the date for start of limitation for the purposes of a suit on that bond. Their Lordships again had to construe Article 132, according to which the starting point of limitation is 'when the money sued for becomes due.' It appears that in this Court the view had been, taken that, when in terms of a mortgage bond money becomes due on the first occasion, the limitation must start from that occasion, and if under any other provision of the same bond money also became due at a later date, that date did not count at all. Their Lordships while dealing with this view of this Court remarked that the language of the Act that had to be construed was not like this vizc: 'When the cause of action arose.' That is the language which is used in the English statute of limitation, and it uniformly gives six years' period of limitation from the date when the cause of action arises. It will be well to quote the actual language of their Lordships. Their Lordships referred to an English decision and remarked that

it is, they think, always dangerous to apply English decisions to the construction of an Indian Act.

49. Having said so, their Lordships continued:

The clause there under consideration differed widely from that now before their Lordships and indeed from the clauses with which the Allahabad Court had to deal; the question for decision would have fallen in India, not under Article 132, but under Article 75, which is in very special terms; and Section 3 of the Statute of James, with which the Court was concerned, made the time to run, not from the date when the money became due, but from the date when the cause of action arose. If in the Indian Oases the question were when did the mortgagee's cause of action arise?' i.e., when did he first become entitled to sue for the relief claimed by his suit their Lordships think that there might be much to be said in support of the Allahabad decisions.

50. It appears from this quotation that where the starting point of limitation is 'when the cause of action arose,' it is the first accrual of the cause of action that counts, and not any subsequent accrual. In Article 181, Col. 3 the date for starting limitation is 'when the right to apply accrues.' This expression in my opinion, is very similar to the expression 'when the cause of action arose,' and in view of the pronouncement of their Lordships already quoted, it is the first date of the accrual of the right to apply that would matter and therefore the date of the decision of the first appellate Court and the date of the decision of the High Court. In this view, an application for restitution would ordinarily be beyond time if made more than three years after the accrual of the right to apply. In this particular case however the application was not for delivery of possession, but for assessment of mesne profits. Now, mesne profits can be assessed only after delivery of possession has been made in favour of the applicant. Prior to that no body could say when the possession would be delivered and upto what date mesne profits would have to be calculated. This view was expressed by mysalf sitting with my brother Bennet, J., in Dhapo v. Bakridi : AIR1932All609 , quoted above. The delivery of possession in this case took place in favour of the defendants on 5th October 1926, and the present application having been made on 2nd September 1929, was amply within time. As regards the amount, I have already pointed out that the figure arrived at by consent of parties must be accepted in second appeal under the circumstances already described. In the result, I also agree in dismissing the appeal with costs.

King, J.

51. The first question for consideration is whether an application for restitution under Section 144, Civil P.C. is an application 'for the execution of a decree' within the meaning of Article 182 of the first schedule to the Limitation Act. It is conceded on behalf of the respondents that if this question be answered in the negative then the period of Limitation for an application for restitution must be governed by the residuary Article 181 of the Limitation Act. There has been a great divergence of judicial opinion on this question, but I think it is unnecessary to discuss all the conflicting rulings. If the case were one of first impression to be decided merely upon an interpretation of the language of the Civil Procedure Code, and of the Limitation Act, I should be inclined to hold that an application for restitution is not an application for the execution of a decree. Under the Civil Procedure Coda of 1882 it was enacted in Section 583 that when a patty entitled to any benefit (by way of restitution or otherwise) under a decree passed in 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.

52. It seems to be clear therefore that under the Code of 1882, applications for restitution were to be regarded and treated precisely as if they were applications for the execution of decrees. It would seem to follow that the rule of limitation governing applications for the execution of decrees must also govern applications for restitution and this was the view taken by most of the High Courts in India.

53. The language of Section 144 of the Code of 1908, which corresponds to Section 583 of the Code of 1882, has been very substantially altered. All references to the execution of the appellate decree have been omitted. It has been suggested that the words referring to the execution of the decree have been omitted as being superfluous. I am not inclined to accept this explanation. It appears to me that if it bad merely been intended to omit the words as being superfluous there would have been no necessity for such a radical change of the language of the section. Also it cannot be said that the language has been changed in order to make it clear that no sepa-1 rate suit for restitution would be maintainable. If that had been the intention of the Lagislature, then it could have been attained by merely adding the new Sub-section (2) which expressly bars a separate suit for restitution. In my opinion the Legislature by making such a radical change in the language of the section, and by omitting all reference to execution, meant to make it clear that an application for restitution should not be regarded or treated like an application for the execution of a decree. This view derives some support from the fact that the provision relating to restitution (i.e., Section 144), is not included in part 2 or in Order 21, which contain the provisions relating to the execution of decrees, but is included in part 11 under the heading 'Miscellaneous.' This is an indication that restitution is not to be treated like execution of the appellate decree. There is no doubt that the powers exercisable by a Court under Section 144 differ widely from the powers exercisable by a Court executing a decree. A Court which executes a decree has to carry out the ex. press terms of the decree. There is no necessity for ascertaining the liability of the judgment-debtor by a separate proceeding. In the present case the decree of the lower appellate Court reversed the decree of the trial Court and dismissed the plaintiffs' suit for the possession of certain land, but it did not order that the defendants should recover possession of the land in suit, or that they should receive mesne profits or compensation of any sort far the period of their dispossession. These points were all left for the determination of the trial Court when causing restitution to be made. The powers and discretion granted to the Court in carrying out restitution are very wide and certainly much wider than are exercisable by a Court executing a decree. In my opinion the Court in making restitution is exercising its inherent powers of doing justice and of taking care that the erroneous decree shall not result in causing injury to any of the suitors. It goes much further than merely executing the decree of the appellate Court. It seems to me therefore that there is a real difference and a substantial distinction between executing a decree and making restitution.

54. A similar view was expressed by a Bench of this Court in Jiwa Ram v. Nand Ram A.I.R. 1922 All. 223, and it has been consistently followed without any expression of doubt by successive Benches of this Court. There is certainly much to be said for the opposite view. The Court which carries out restitution does perform certain duties analogous to those performed by a Court which executes a decree and, if a very wide and liberal meaning is given to the words 'execution of a decree' they may be held to include giving effect to a decree, and that is what a Court does, in one sense, when it makes restitution under Section 144. In my opinion however this interpretation would involve too much stretching of the language of Article 182. The difference between making restitution and executing a decree should not be ignored. It has also been suggested that the Legislature cannot have intended to alter the law of limitation so as to put the applicant for restitution in a worse position than the applicant for execution. Against this argument it must be observed that even under the Coda of 1882 the Calcutta High Court used to hold that limitation for an application for restitution was not governed by the Article governing an application for the execution of a decree, and the amendments made in the Code of 1908, seem to show that the Legislature intended that view to prevail. If it results in unintended hardship then the Legislature can intervene and make it clear that Article 182, and Section 6, Limitation Act, apply to applications for restitution as well as to applications for the execution of decrees. I see no good reason for dissenting from the view which has been consistently held in this High Court on this point. I would also refer to a Pull Bench ruling of the Patna High Court in Balmakund Marwari v. Basanta Kumari Dasi A.I.R. 1925 Pat. 1. The question was discussed there at length and I respectfully agree with the majority of the learned Judges.

55. I think that the view which has hitherto prevailed in this High Court is correct. On the principle of stare decisis we should not disturb the current of decisions without strong reasons. Judicial authority in other High Courts is divided. There is certainly no clear preponderance of authority in favour of the opposite view and the reasons in support of the opposite view do not seem to be stronger or even as strong. I would therefore answer the first question in the negative. The second question is from what point of time limitation is to run if Article 181 is applicable. On this point I am in agreement with my learned brother Mukerji. It seems to me that when the lower appellate Court dismissed the plaintiffs' suit, the right accrued to the successful defendant-appellants of applying to the Court, which passed the decree for restitution. Certainly the defendants could have applied for restitution to the extent of recovery of possession and compensation for the price of the crops which were on the ground when the plaintiffs took possession under the trial Court's decree, which was superseded. As a matter of fact, the defendants did apply for restitution, to the extent of recovery of possession, soon after the lower appellate Court had passed its decree and did recover possession long be-fore the decree of the High Court dismissing the appeal was passed. It is no doubt true that the decree of the High Court, which confirmed the decree of the lower appellate Court, superseded the latter decree; but I cannot find any authority for the view that the decree of the higher appellate Court could give a fresh starting point for limitation under Article 181. The words in third column of the first Schedule in respect of Article 181, Limitation Act, are when the right to apply accrues' and I think this must be taken to mean 'when the right to apply first accrues.' It seems to me clear that the right to apply did first accrue when the lower appellate Court passed its decree. I would hold therefore that ordinarily the decree of the lower appellate Court, reversing the decree of the trial Court, would form the starting point of limitation for an application for restitution. In the present case however I agree with Mukerji J., that the starting point of limitation for the application in question in so far as it is for mesne profits during the period of dispossession, is not the date of the lower appellate Court's decree, but the date on which possession was restored to the defendants, that is, 5th October 1926. Until possession had been delivered to the successful defendants, it would be impossible for the trial Court to ascertain what amount of mesne profits should be paid to them for the period of dispossession.

56. In the present case therefore I would take the starting point of limitation for the application for mesne profits to be 5th October 1926, the date of the recovery of possession in consequence of the lower appellate Court's decree. On this view, the application in respect of mesne profits is within time, but the claim for the price of the crop is barred by limitation.

57. An application for restitution under Section 144, Civil P.C. is not an application for the execution of a decree within the meaning of Article 182, Limitation Act, and that Article does not apply to it. It is an application not specifically provided for and is governed by Article 181, Limitation Act. The time for applying begins to run from the date of the lower appellate Court's decree when the first Court's decree was reversed and the right to apply for restitution first accrued. But where the application is for recovery of mesne profits, the time does not begin to run till possession has been restored to the successful party. The appeal is accordingly dismissed with costs.


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