1. The question for consideration in these two connected appeals is whether the Municipal Board of Meerut is entitled to retain the price of certain manure, that was stored in the year 1947 on a piece of land at Meerut. In both the appeals the Municipal Board is the appellant; and Bir Singh and three others are the respondents.
2. One Amjad was the owner of the plot, on which the manure in question had been deposited. Bir Singh and other respondents are Amjad's succes-sors-in-interest. For many years the Municipal Board of Meerut (hereafter referred to as the Board) occupied the plot as Amjad's lessee or licensee. The Board used to deposit night-soil on this plot, the night-soil got converted into manure. In 1946 respondents filed a suit in the Court of Munsif, Meerut for Board's ejectment from the plot. That suit was dismissed by the trial Court, but decreed in appeal by the Judge, Small Cause Court, Meerut. The decree for possession was put into execution by the respondents in March 1947. The respondents obtained possession over the plot through Court on 2-4-1947.
3. At that time some manure was lying on the plot. The Board moved a series of applications to enable it to recover the manure. On one of those applications, the Munsif passed an order permitting the Board to remove the manure in 20 days. When the matter went before the Civil Judge of Meerut in appeal, he permitted the Board to remove the manure on condition that it should keep the price in deposit till further orders. The present respondents filed an Execution Second Appeal before this Court. That Second Appeal was allowed by this Court in April 1930. Orders of the lower Courts were set aside and the Board's objection was dismissed.
4. On the basis of this Court's order dated 24-4-1950, the respondents moved an application for restitution under Sections 144 and 151, Civil P. C. The respondents requested the Court for payment of the sum of Rs. 35,000 as compensation, damages and price of the manure removed by the Board. The application for restitution was opposed by the Board, but was allowed by the City Munsif of Meerut on 7-8-1951. TV Court directed recovery of Rs. 35,000 from the Board.
5. The Board instituted two separate proceedings to avoid the order for restitution dated 7.8-19,51. Firstly, it filed a Miscellaneous Appeal against that order. Secondly, the Board filed a regular suit for an injunction restraining the respondents from realizing from the Board the sum of Rs. 35,000, as directed by the City Munsif, Meerut. The Board's case is that the manure in question belonged to it. Defendant No. 4 happened to be the Executive Officer of the Board in 1941, and again from 1947 to 1951. The Board was prevented from knowing anything about the execution proceedings. The Board had no knowledge about delivery of possession on 2-4-1947, for some time. The decision of the High Court dated 24-4-1950 was based on technical ground, and was not a decision on merits. The Board's claim was resisted by the defendants. It was pleaded that the suit is barred under Sections 47 and 144, Civil P. C., and by Section 56, Speci6c Relief Act. Those connected proceedings were decided by the learned First Civil Judge of Meerut in favour of the defendants, and against the Board. The Court held that the order passed by the trial Court for restitution was proper. It was further held that the regular suit was barred by Section 47, Civil P. C., and Section 58, Specific Relief Act. By two separate judgments dated 25-4 1958, the learned Civil Judge dismissed the regular suit and the miscellaneous appeal.
6. The present appeals before us are directed against these two decisions of the learned First Civil Judge, Meerut dated 25-4-1956. First Appeal No. 304 of 1956 arises out of the regular suit. Second Appeal No. 1091 of 1956 is directed against the decision dismissing the Miscellaneous Appeal No. 140 of 1951. Since most of the questions of fact and law are common, the two connected appeals can be conveniently disposed of by a common judgment. We shall refer to the various documents by the exhibit numbers, which were assigned to them in the regular suit.
7. It will be noticed that there has been prolonged litigation between the parties from 1944 to 1951. The different stages of the litigation may now be examined. The first stage relates to the regular suit, in which the respondents obtained against the Board a decree for ejectment. That was Suit No. 2310 of 1944. Exhibit 1 is a copy of the judgment of the trial Court dated 22-12-1945 dismissing the suit. Ex. A. 24 is a copy of the appellate judgment dated 16-10-1948 allowing the respondents' claim for possession of the land against the Board.
8. The second stage relates to execution of the decree dated 16-10-1946. Exhibit 8 is a copy of the application for execution dated 2-3-1947. Exhibit A-20 is a copy of the Amin's report dated 2-4-1947 about delivery of possession over the land. Exhibit 10 is a copy of the memorandum dated 2-4-1947 prepared by one decree-holder, Gadadhar Singh or Gajadhar Singh admitting having obtained possession through the Court Amin.
9. In the third stage of this litigation there were two applications by the Board for the recovery of the manure. In the application (Ex. 11) dated 10-4-1947 the Board requested the Execution Court not to confirm possession over the land by means of proclamation. The Court was requested to stay the execution proceedings. That application was dismissed by the Execution Court on 26-4-1947. Ex. A-29 is a copy of that order. The same day (28-4-1947) the Board moved another objection under Order XXI, Rule 26 (2), C. P. C. The Board requested the Court to reconvey possession over the land to the judgment-debtor to enable it to sell the manure. In the alternative, the judgment-debtor requested the Court to permit it to remove the manure from the land and dispose of it. Ex. A.30 is a copy of that objection. On that application, the court passed the following order :--
'Rejected, issue notices.'
Ex. A 31 is a copy of that order. That brief order was very confusing. On the one hand, the order purported to reject the objection. On the other hand, the Court agreed to issue notices to the other party.
10. In the fourth stage of the litigation we come across two applications by the Board moved on 31-5-1947. By one application (Ex. A-32) dated 31-5-1947, the Court was requested to treat the previous objection as one under Section 47, C. P, C. By the other application (Ex. 12) dated 31-5-1947, the Board requested the Court to give it two months' time to remove the manure. On 28-7-1947 the Munsif passed the following order : --
'It is therefore ordered that the objection be allowed. The decree-holders are directed to allow to the objector 20 days' time for removing the Khattas.'
Ex. A-35 is a copy of that order dated 28-7-1947. Khattas denote pits, in which night soil or manure had been stored. Against that order, the present respondents filed an appeal, which was C. A, No. 660 of 1947. On 23-8.1947 the first Civil Judge of Meerut passed an interim order in that appeal. That order (Ex. A-37) ran thus : --
'........ The Municipal Board respondent has sold the manure. I am told for Rs. 35,000 'to agriculturists. ........... It is allowed to be removed and its price is ordered to be kept in deposit to be given to rightful owner after decision of appeal, the parties interests would not he affected in any way. I, therefore, allow the respondent to remove the manure hut he shall keep the price in deposit till further orders, ..........'
Civil Appeal No. 660 of 1947 was dismissed by the learned Judge on 19-9-1947. Ex. 4 is a copy of the judgment. It was held that the Board was entitled to remove the manure from the plot. That decision was reversed by this Court in Execution Second Appeal. Ex. A-40 is a copy of the judgment of the learned Single Judge of this Court dated 24-4.1950. The orders of the two lower Courts were set aside; and the Board's objection was dismissed.
11. The fifth stage of the litigation relates to restitution proceeding. Ex. A-41 is a copy of the application for restitution dated 24-10-1950. Ex. A-42 is a copy of the learned Munsif's order dated 7-8 1951 directing restitution. The validity and propriety of the order for restitution dated 7-8-1951 fall for consideration in these two connected appeals.
12. The broad question for consideration in these appeals is whether the manure in question belonged to the appellant or to the respondents. The question of ownership of the manure may be considered at three different stages (a) before the manure reached the respondents' plot; (b) after the manure reached the plot but before the respondents obtained possession over the land on 2-4-1947; and (c) after 2-4-1947.
13. Mr. Shanti Bhusan, appearing for the respondents, contended that the manure never belonged to the Board. This contention cannot he accepted. The practice appears to be that municipal sweepers collect night soil from latrines of private houses. The night soil so collected is deposited at some convenient place. The question arises whether the night soil collected by municipal sweepers belongs to the Municipal Board. Mr. Shanti Bhusan contended that the night soil belong to the owners of the houses, from which it was collected. That may be the position before the Municipal sweepers collect the night soil. But the position is altered, when the municipal sweepers collect the night soil from latrines for proper disposal. Obviously the night soil was in possession of the Board through the sweepers between the time of collection and deposit on the respondents' plot. Possession by itself is an indication of title. A person in possession is entitled to protection against all persons except the true owner. In the instant case no owner of a house has claimed any interest in the night soil or manure. The dispute is between the Board and owners of the land, on which the night soil was deposited. As between the present parties, the night soil must be taken as having vested in the Board before the night soil reached the respondents' plot.
14. Provisions of the U. P. Municipalities Act lead to the same conclusion Section 116 of the Act deals with property vested in the Board. Clause (d) of Section 116 is :-
'All dust, dung, ashes, refuse, animal matter or filth or rubbish of any kind, or dead bodies of animals collected by the Board from the streets, houses, privies, sewers, cesspools or elsewhere are deposited in places appointed by the Board.......'
In view of Section 116, U. P. Municipalities Act, it must be held that night soil collected by Municipal sweepers from various places vested in the Board.
15. Mr. Shanti Bhushan contended that the respondents became owner of the night soil after its deposit on the respondents' land. Admittedly, the Board failed to remove the manure before 2-4-1947. It was, therefore, contended for the respondents that the title to the manure passed to the respondents. For this contention, Mr. Shanti Bhusan relied upon Section 108, Transfer of Property Act. Clause (h) of Section 108, Transfer of Property Act states :
'The lessee may even after the determination of the lease remove, at any time while he is in possession of the property leased but not afterwards, all things which he has attached to the earth : Provided he leaves the property in the state in which he received it.'
In Arumugham v. Sankaran AIR 1951 Mad 985 it was held that, notwithstanding the determination of a lease, so long as a person is in possession of the property, he is entitled to remove it; but, it he leaves the property, he has no right to the property and remove it, and the fixtures become the property of the lessor.
In Khimjee Thakarsee v. Pioneer Fibre Co. Ltd. AIR 1941 Bom 337 the lessee failed to remove the structures on the determination of the tenancy. It was held that the lessee lost all right, title and interest in those structures.
In Govinda Prosad Shah v. Smt. Charusila Dassi, AIR 1983 Cal 875 it was held that Clause (h) of Section 108, Transfer of Property Act is intended to be a complete statement of the tenant's right as regards removal of structures. It the right given by Clause (h) is exhausted, the tenant cannot have a further right to remove the fixtures. If the tenant does not remove them within a reasonable time after termination of the tenancy, he has no right to remove them.
In India Electric Works Ltd. v. Mrs. B.S. Mantosh, AIR 1958 Cal 148 it was explained that there is nothing in Section 108(h), Transfer of Property Act to support the contention that the title of the lessee to fixtures is lost or extinguished, after the term of the lease, by operation of the clause. It is not a clause on forfeiture, and it is not declared therein that after the expiry of the term of the lease, or after the lessee has ceased to be in possession, his title to the fixtures could be forfeited.
16. With respect, we agree with the view taken by Calcutta High Court in the case of India Electric Works. Clause (h) appears under Part (B) of Section 103, Transfer of Property Act dealing with rights and liabilities of the lessee. Clause (h) deals with the; question whether a lessee is entitled to remove hie property from the premises leased to him. The subject-matter of Clause (h) is the right of removal, and not ownership of the article. Clause (h) does not lay down that, if a lessee leaves an article on the land either deliberately or through inadvertence, the lessor becomes owner of the article. So, the fact that the Board failed to remove the manure by 2-4-1947 did not affect the question of the Board's title to the manure.
17. When the Board filed applications and objections before the Execution Court in April and May 1947, the present respondents filed a reply on 5-7-1947. Ex. A-18 is a copy of that reply, dated 5-7-1947. In para. 5 of the reply it was stated :
'After the delivery of possession, the judgment-debtor has no right according to law and equity, to remove any Khattas and to leave pits in the land of which possession has been taken.....'
That reply implies that the judgment-debtor was entitled to remove the manure up to the time the decree-holder obtained possession over the laud. In para, 4 of the plaint of the present suit (Suit No, 7 of 1952) the plaintiff stated :
'That the plaintiff while holding the said plot was using it for depositing night soil vesting in and belonging to it. The night soil used to be purchased from the plaintiff by agriculturists for manuring purposes and used to yield the plaintiff substantial amount every year.
In para. 4 of the written statement, para. 4 of the plaint was not admitted. According to Order 8, Rule 5, C. P. C. a written statement must contain a specific denial of an allegation in the plaint. Order 8, Rule 5, C. P. C. states : 'Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted.....'
The written statement in the present case does not contain a specific denial of the allegations contained in para. 4 of the plaint. It is true that in para. 13 of the written statement it was pleaded that the plaintiff had no title to the manure in dispute. But there was no suggestion in the written statement that the defendants used to dispose of manure before 2-4-1947. We may, therefore, accept the plaintiff's case that the Board used to dispose of manure stored on the defendant's land before 2-4-1947. After considering the circumstances in which the night soil was collected and preserved, it becomes clear that night soil vested in the Board. The Board continued to be the owner of the night soil or the manure at least up to 2-4-1947. The question how far the Board's rights in the manure were affected as a consequence of subsequent orders of the Court will be discussed later.
18. An important question for decision in these appeals is the nature of the proceedings before the Court between April 1947 and April 1950. According to the respondents, these were proceedings in execution, and were governed by Section 47, Civil P. C., Mr. Brij Lal Gupta, appearing for the appellant, contended that those were miscellaneous proceedings, which did not attract Section 47, Civil P. C.
19. In Niyaz Bi v. Amdu Miyan the Court issued a warrant for delivery ot possession of a house. Accordingly, possession was delivered to the decree-holder. The house had been locked by the judgment-debtor. The lock was broken by the Court official in order to effect delivery of possession over the house. The process-server drew up a list of items found inside the house, and made them over to the decree-holder. Later, the judgment-debtor refused to take back the articles on the ground that they were either substituted or badly damaged. He applied to the executing Court for directing the decree-bolder to return the property or pay its price. It was held that there was no process issued by the Court for seizure of any moveable property. The process server, in handing over the moveables found in the house, did not act in pursuance of any order of the Court; and the property which was taken charge of by the decree-holder could not be said to have come into the custody of the Court. What was done was altogether outside the scope of the execution proceedings. The judgment-debtor's application for return of the property could not be treated as one relating to the execution of the decree, and the remedy was by a suit.
19a. In Panchoo Jolaha v. Mohammed Ismail : AIR1949All263 there was a decree for possession over a piece of land. A cattle-shed stood on that land. The decree did not provide for demolition of the cattle-shed. In the course of the execution of the decree the cattle-shed was demolished, and the decree-holder was given possession over vacant land. The judgment-debtor claimed compensation for the loss by an application under Section 47, Civil P. C. It was held that the act of demolishing the cattle-shed was not any part of the execution of the decree. The question of compensation was not one relating to the execution, satisfaction or discharge of the decree. In demolishing the cattle-shed the Court officer and the decree-holder were not carrying out either the orders of any Court or the terms of any decree. For the act of tort committed by them, the only remedy available was a suit, and not an application under Section 47, Civil P. C.
19b. In Abdul Karim v. Mst. Islamunissa Bibi AIR 1916 All 104 the judgment-debtor was dispossessed of land outside decree. It was held that his only remedy is by application for restoration of possession under Section 47, Civil P. C.
19c. In Partab Singh v. Beni Ram, ILR 2 All 61 it was held by a Full Bench of Allahabad High Court that moneys realized as due under a decree if unduly realized are recoverable by application to the Court executing the decree, and not by a separate suit.
19d. In Bam v. Amir Singh, : AIR1940All78 the plaintiffs instituted a suit to recover certain property which had been sold in execution of a mortgage decree on the allegation that more property had been sold than what had been mortgaged and covered by the decree obtained on the foot of the mortgage. It was held that the plaintiffs' suit was in substance a suit to avoid an auction sale held in execution of a mortgage decree. Since the sale had been confirmed by the Court, it was valid until it was set aside. It was held that the suit was not maintainable.
20. The principle to be deduced from these decisions is this. If the judgment-debtor's grievance relates to excessive execution, his remedy is by way of an application under Section 47, Civil P. C. But if the decree-holder's act does not relate to execution, discharge or satisfaction of the decree, but constitutes a tort, the judgment-debtors' remedy is a regular suit.
21. In Dhian Singh v. Union of India : 1SCR781 , torts of certain types were explained. A conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. The action of detinue is based upon a wrongful detention of the plaintiff's chattel by the defendant, evidenced by a refusal to deliver it upon demand.
22. The learned Civil Judge held that the defendant's act in retaining the manure in dispute was not tortious, because they acted in good faith. Firstly, no plea of good faith was raised by the defendants in their written statement. Secondly, the defendants' good faith had little bearing on the question whether their act amounted to tort. Good faith has an important bearing on the question whether the act amounted to an offence. But good faith has little bearing on the question whether the act was tortious.
23. The defendants seized the manure under the following circumstances. In 1946 they obtained against the Board a decree for ejectment from certain land. Neither party raised any question about manure in suit No. 2310 of 1944. Neither the execution application (Ex. 8) nor the MunsiPs warrant (Ex. 9) made any mention about manure. In the Dakhalnama (Ex 10) the decree holder merely mentioned that he had obtained possession over certain land. Ex. 10 made no reference to any manure. Ex. A-20 is a copy of the Amin's report dated 2-4.1947. The report ran thus : --
'.....................I went to the spot at Meerut and formally caused absolute possession to be delivered to the decree holder over the land mentioned in the 'Parwana'. The land aforesaid is land of '.Khattas', and no building etc. existed thereon. A 'Dakhalnama' was caused to be prepared. The warrant for possession is accordingly submitted after compliance......'
It is true that Ex. A-20 contains a reference to Khattas. But that was merely by way of description of the land. The Amin merely pointed out that some manure had been stored on the land, and no building existed there. There is no indication in Ex. A-20 that the Amin put the decree-holder in possession over the manure along with the land. The execution proceedings were confined to delivery of land mentioned in the decree. The decree-holders appear to have utilized the opportunity for seizing the manure belonging to the Board. That was a private act of the decree-holders. The Amin had no hand in the matter. The defendants seized the manure belonging to the Board. The defendants' act amounted to conversion or detinue. Unlawful seizure of manure by the defendants did not relate to execution, discharge or satisfaction of the decree. The defendants' act was tortious. So, on the principle explained above, the plaintiff's proper remedy was by regular suit, and not by an application under section 47, C. P. C. It follows that the present suit is not barred under section 47, C. P. C.
24. The trial court did not frame any issue on the question of res judicata. But the defendants did raise the question of res judicata in their written statement. So that plea must be examined.
25. In order to find out whether the present suit is barred under section 11, C. P. C. or by the general principle of res judicata, we have to examine a series of decisions by different Courts between Aprill947 and April 1950. On 10-4-1947 the Board moved the application (Ex. 11) requesting the execution Court not to confirm the proclamation relating to possession over the land. On that application, the learned Munsif passed the following order (Ex. A-29) on 26-4-1947:-
'Possession having already been delivered to the decree-holder, the remedy sought in the application is misconceived. Application dismissed.'
That order gave no indication about ownership of the manure. Ex. A-30 is the Board's second application dated 26-4-1947- That application contained the following prayer;
'Possession over the land aforesaid may be reconveyed to the judgment-debtor to enable it to sell the Khattas or the judgment-debtor may be permitted to remove the Khattas from the land aforesaid and to bury it somewhere else or dispose it of.'
On that application, the Munsiff passed the following under (Ex- A-31) on 28-4.1947:--'Rejected, issue notices'.
In the first place, that brief order was very confusing, Secondly, all that one could perhaps gather from that order is that, the Munsiff refused to grant to the Board any relief mentioned in that application (Ex. A-30). The Court refused to reconvey the land to the Board. The Munsif also did not permit the Board to remove the manure from the land. Here again we do not find any decision on the question of ownership of the manure.
26. Ultimately, the matter reached the High Court in Execution Second Appeal No. 650 of 1948. Mr. Shanti Bhushan placed strong reliance upon the judgment of this Court (Ex. A-40) dated 24-4-1950 on the question of res judicata. It is, therefore, necessary to ascertain from the true copy, implication of the judgment (Ex. A-40). After referring to the previous history of the case, the learned Single Judge observed:
'One such application was made on 26-4.1947. This application was also dismissed on the 28th April, 1947. Then two applications were made on the 31st May, 1947. In one of the applications the same prayer was made as had been made on the two previous occasions ......... This time the Court allowed the objections by an order dated 28th of July, 1947..... The decree holders have now come up in second appeal to this Court and the point raised before me is that once the objections of the Board had been dismissed by the learned Munsif a second application on the same ground could not be allowed.
I think the contention is well founded. The two applications of the Board dated 10th April, 1947 and 26th April, 1947 which were dismissed by the learned Munsif raised precisely the same question as was raised in the applications made on the 31st May, 1947, namely, that the Board was entitled to remove the manure that had been dumped on the land in dispute. The Court having once decided the question that the Board was not entitled to remove the manure after delivery of possession had been made in favour of the decree-holders it was not open to the Court to entertain a second or any other application on the same ground......'
27. No doubt Ex. A40 contains an observation to the effect that the Munsif had previously decided that the Board was not entitled to remove the manure. But we have pointed out that, no such point was actually decided by the Munsif by his orders (Exs. A-29 and A-31). Those orders were merely to the effect that the Court was refusing to help the Board to recover the manure. Neither the Munsif nor the High Court decided the question of ownership of the manure. It is true that Ex. A 40 is a decision between the parties, and that decision binds the present appellant. But the only point decided in the judgment was that the last application dated 31-5-47 was not maintainable, in view of the Munsif's decisions on the previous applications dated 10-4-1947 and 26 4-1947.
28. Mr. Brij Lal Gupta pointed out that the Court dealing with the matter in April 1947 was a Munsif. The present suit was tried by a Civil judge. The valuation of the suit was Rs. 35,000. The Munsif had no jurisdiction to try the present suit. Under Section 11, C. P. C., the Court trying the former suit should have been competent to try the subsequent suit itself. (See Chitaley's Commentary on the Code of Civil Procedure, Volume I, page 415).
29. Mr. Shanti Bhushan contended that, that requirement must be confined to cases strictly falling under Section 11, C. P. C. Section 11, C. P. C., in terms does not apply to execution proceedings. However, in Mohan Lal v. Benoy Krishna, AIR 1953 S C 05 it was held that the principle of constructive res judicata is applicable to execution proceedings.
30. In Raj Lakshmi Dasi v. Banamali Sen : 4SCR154 it was held that the decision of a District Judge in a land acquisition proceeding operated as res judicata in a subsequent suit. Their Lordships observed on page 40 :
'The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principle- of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute.'
31. In Raj Lakshmi Dasi's case : 1953CriLJ525 the previous decision was by a Court of special or exclusive jurisdiction (land acquisition). That is not the position in the present case. The Court dealing with the controversy between the parties in April 1947 was a Munsif's Court. The present suit was tried by a Civil Judge. These are Courts in the hierarchy of Civil Courts. Although Ex. A-40 is a decision by the High Court, we must remember that that decision arose out of the Munisif's decision dated 28-7- 1947 permitting the Board to remove the manure. So, for purposes of res judicata, one has to enquire whether the Munsif, who passed the order dared 28-7-1947, had jurisdiction to try Suit No, 7 of 1952.
32. On examining the previous history of the case, we find firstly, that the Munsif, who dealt with the matter in the first instance, between April and July 1947, was not competent to try the subsequent suit No. 7 of 1947 under Section 47, C. P. C. which was misconceived. It was not legally possible for the Board to obtain any relief under S 47, C. P. C. Thirdly, none of the Courts, which dealt with the matter between April 1947 and April 1950, decided the question of ownership of the manure. For all these reasons, the various decisions of different Courts between April 1947 and April 1950 do not operate as res judicata in the present suit on the question of ownership of the manure.
33. Next, we have to examine the defndants' plea of estoppel. It was pointed out that the Hoard itself requested the Court on 31-5-1947 to treat its application as one under Section 47, C. P. C, It was, therefore, urged by Mr. Shanti Bhushan that the plaintiff is estopped from taking up the stand that the proper remedy is a regular suit.
34. In Latchmanan v. Madras Corporation AIR 1927 Mad 130 (FB), it was held that, where an applicant armed with a point either of law or of fact which would oust the jurisdiction of the lower Court has elected to argue a case on its merits before that Court, he must be taken to have submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate by applying for a certiorari.
35. In Mahrajdin v. Balbhaddar Pershad the plaintiff obtained the opinion of a Court on regular side instead of a Court of summary side. By that action, he obtained the further advantage of an appeal, which he would not have obtained if the case had been tried on the Small Cause Court side. It was held that the plaintiff could not subsequently plead want of jurisdiction.
36. That principle should be confined to cases, where a person has two alternative remedies for getting the same relief. But that is not the position in the present case. If the controversy did not relate to execution, discharge or satisfaction of a decree, the plaintiff could not get any relief by an application under Section 47, C. P. C. The only remedy is by a regular suit. It is true that the plaintiff did file an application under Section 47, C. P. C, in the year 1947. But the only effect of that action is that the present appellant will be precluded from urging that his previous application was not under Section 47, C. P. C. That futile application of 1947 would not prevent the plaintiff from satisfying the Court that its previous attempt to obtain a relief was misconceived, and the proper remedy is a regular suit. The present suit is not barred by the principle of estoppel. Sub-section (2) of Section 144, C. P. C. states: -
'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).'
The present plaintiff is not seeking to obtain any restitution. On the contrary, the plaintiff is trying to prevent restitution in favour of the defendants. The present plaintiff could not obtain any relief by filing an application under Section 144, C. P. C. The learned Civil Judge rightly held that the present suit is not barred by Section 144, C. P. C.
37. Issue No. 3 raises the question of bar under Section 56, Specific Relief Act. It was pointed out for the defendants that the plaintiff is seeking an injunction in order to prevent the defendants from enforcing the order for restitution passed in their favour. It was urged for the defendants that, it is not permissible in law to grant an injunction of this nature.
38. In Mst. Mahdei Kunwar v. Bahu Rani Sahiba, 50 Ind Cas 180 : (AIR 1919 Oudh 154) one party made an application to restrain execution in its entirety. It was held by Oudh Judicial Commissioner's Court that the application is not maintainable, in view of the provisions of Clause (a) of Section 56, Specific Relief Act.
39. In Shyam Lal Gomatwala v. Nand Lal : AIR1944All220 , the plaintiff sought an injunction restraining a defendant from proceeding with his application in the Criminal Court. It was held that no permanent injunction can be granted restraining a party from moving a Court for the redress of his grievance. In that case the plaintiff was trying to prevent the defendant from proceeding with his application in a Criminal Court. That matter, falls under Clause (e) of Section 56, Specific Relief Act. In the present case the plaintiff is not seeking to stay proceeding in any criminal matter.
40. In Parma Nand v. Smt. Chhimmawati, : AIR1955All64 it was held by a learned Single Judge of this Court, a suit against whom a decree has been passed under Section 9, Specific Relief Act for restraining the decree-holder from executing the decree does not lie. The judgment does not contain any discussion with respect to Section 56, Specific Relief Act.
41. In Deno Buddhu Nundy v. Hari Mati, ILR 31 Cal 480 it was held by Hill, J. that a suit for an injunction of a decree conflicts with the provision of Section 56, Specific Relief Act. That judgment is very brief, and does not refer to any particular clause of Section 56, Specific Relief Act.
42. In Appu v. Raman, ILR 14 Mad 425, junior members of a family prayed for an injunction to restrain defendants from executing a decree. It was held that the injunction sought was not precluded by Clause (b) of Section 56, Specific Relief Act.
43. Section 59, Specific Relief Act, contains a number of clauses. The defendants relied on different clauses of Section 56 at different stages. Mr. Shanti Bhushan relied on Clause (b) of Section 58. According to Clause (b) of Section 56 Specific Relief Act, an injunction cannot be granted to stay proceedings in a court not subordinate to that from which the injunction is sought. In the first place, the defendants did not plead the bar of Clause (b) of Section 56 in their written statement, Secondly, the Civil Judge, who tried the present suit, is higher in rank than the Munsif, who passed the order for restitution. Even if there is some difficulty in holding that the Munsif is subordinate to the Civil Judge, there is no doubt that the Munsif is subordinate to the High Court. Even if the Civil Judge was incompetent to grant an order of injunction, it is open to the High Court to grant an injunction restraining the defendants from enforcing an order for restitution passed by the Munsif in their favour.
44. The defendants in their written statement raised the question of bar under Clauses (a) and (b) of Section 56, Specific Relief Act. These were the clauses mentioned in issue No. 3 framed by the trial Court. So these two clauses may now be examined. According to Clause (a) of Section 56 Specific Relief Act, an injunction cannot be granted to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought unless restraint is necessary to prevent a multiplicity of proceedings. There are two answers to the plea with respect to the alleged bar under Clause (a). Firstly, no judicial proceeding was pending when the present suit was filed by the Board. The order for restitution had already been passed by the Munsif before the present suit was filed by the Board. In terms, the plaintiff is not seeking to prevent any pending judicial, proceeding. Secondly, such an injunction appears necessary to prevent a multiplicity of proceedings. If injunction is refused, the defendants will be able to obtain money on the basis of the order for restitution. Thereafter the Board will have to institute another proceeding to recover the money on the ground that the manure and the sale proceeds belonged to it. It is desirable to prevent such multiplicity of proceedings,
45. According to Clause (i) of Section 58, Specific Relief Act, an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. In this connection, it was urged for the defendants that the plaintiff could obtain the appropriate relief by an application under Section 47, Civil P. C. This point has already been examined. It has been found that the plaintiff could not get any relict under Section 47, Civil P. C. The appropriate remedy is the filing of a regular suit. This suit is not barred by Section 56, Specific Relief Act.
46. Mr. Brij Lal Gupta challenged the order for restitution on the ground that no decree has been reversed in appf-al. The order for restitution was passed by the Munsif in August 1951 At that time Section 144, Civil P. C. stood thus : --
'Where and in so far as a decree is varied or reversed, .....'
Operation of Section 144, Civil P. C. was confined to cases where a decree was varied or reversed. It was pointed out that, by its order Ex. A-40 the High Court did not reverse any decree. The High Court merely reversed certain orders passed by the Munsif and the Civil Judge. It may, however, be pointed out that both the parties treated the case as a proceeding under Section 47, Civil P. C According to the definition of 'decree' contained in Clause (2) of Section 2, Civil P. C., a 'decree' includes determination of any question under Section 47. Civil P. C. According to that definition, the decisions of the Munsif and the Civil Judge permitting the Board to remove the manure amounted to decrees. So, the decision of the High Court (Ex. A-40) can be treated as a decision reversing a decree. It was, therefore, possible to obtain restitution under Section 144, Civil P. C.
47. Again, the learned Munsif pointed out that the scope of restitution is wider than Section 144, Civil P. C. The Civil Judge permitted the Board to remove the manure on condition that the price should be kept in deposit till further orders. That order (Ex. A-37) implied that the money would go to the party, which would succeed in the case ultimately. That proceeding terminated in favour of the present respondents. So, in view of the directions of the Civil Judge contained in his order (Ex. A 37) dated 23-8-1947, the present respondents were entitled to receive the price of the manure. Such an order could be passed under Section 151 Civil P. C. On any view of the matter, the order for restitution dated 7-8-1951 was proper.
48. Net result is this. On the one hand, the order for restitution dated 7-8-1951 is proper. On the other hand the Board has proved that the manure in dispute belonged to it. The Board's ownership remained unaffected by the execution proceedings on 2-4-1947. It follows that the Board is the owner of the sale proceeds of the manure. The Board should not be compelled to part with the money. The present suit is not barred by Section 47, Civil P. C., Section 144, Civil P. C., S 56 Specific Relief Act or by the general principal of res judicata. An injunction should be granted in plaintiff's favour as prayed.
49. The appellant is largely responsible for this prolonged litigation. At first, it filed an application under Section 47, Civil P. C. Having failed in that proceeding, it filed the present suit. Under the circumstances, parties may be directed to bear their own costs throughout
50. Second Appeal No. 1061 of 1956 is dismissed. First Appeal No. 304 of 1956 is allowed We grant a perpetual injunction restraining the defendants from realising or compelling the plaintiff to pay the sum of Rs. 35,000 or any other amount representing the whole or any part of the price of the night soil belonging to the plaintiff and disposed of in the year 1947. Parties shall bear their own costs in all the Courts in the two connected proceedings (proceeding for restitution and the regular suit).