1. This is an appeal against an order of the First Additional Subordinate Judge of Aligarh, dated the 9th March 1920, holding that an application for restitution under Section 144 of the Civil Procedure Code is time-barred. The litigation out of which the question arises has been a remarkably protracted one. The suit was brought in 1901, and the parties have been to this Court at least five times. The point, however, whish we have to decide is a simple one.
2. The facts and so mush of the history of the case as is relevant are fully stated in the judgment of Mr. Justice Piggott, dated the 17th February 1919 (Execution First Appeal No. 139 of 1918), when a Bench of this High Court, consisting of that learned Judge and one of us, allowed an appeal brought by some strangers to the original suit against an order of restitution which the Subordinate Judge had made on the same application whish it now before us for the second time.
3. The appellants before us, Musammat Hanifunnissa and Musammat Bashirunnissa, were the original judgment debtors in the suit. The decree obtained against them, of whish Bansidhar, the predecessor-in-interest of the present respondents, had become the transferee, was set aside and the suit finally dismissed by this High Court, as the result of a prior order made by their Lordships of the Privy Council, by an order, dated the 8th May 1912.
4. The decree against them having been set aside, the appellants acquired on that date, 8th May 1912, a clear right to recover back, by an order of restitution made under Section 144 of the Civil Procedure Code, from the decree holder anything which they had paid, delivered up, or lost as the result of the enforcement of the decree. By the judgment of this Court of the 27th February 1919 it was held that the liability to make such restitution attached to Bansidhar. This judgment is binding on the parties to the appeal before us. It is to be regretted that we were unable finally to dispose of the matter when it was, before us in 1919, but it appears from the judgment of Mr. Justice Piggott that we were not in a position to do this, and we remanded the case for disposal on the points of ret judicata and limitation, whish had been raised but not disposed of in the Court below, The point of res judicata baa been abandoned. The point of limitation has been decided in favour of Bansidhar's representatives. The Article applicable is Article 1-1 of Schedule I of the Limitation Act (IX of 1908), which provides that the application now before us must be made within three years of the time when the right to apply accrues. There is no dispute about this and no question of law, therefore, is raised by the appeal. The question really is one of fact, namely, when was the application, now before us, first made.
5. In our judgment, having regard (a) to the misleading forms issued by the Courts, and if not authorized, at any rate countenanced by them, for the use of litigants in making applications under, Section 144; (b) to the astounding misdescriptions, and embarrassing inaccuracies, as to the status of the parties contained in the written applications made under the section; and (c) to the mistaken terminology adopted in asking for the relief sought, we ought to decide this question of fast as one of substance, and not as one of form only, It is necessary, therefore, to state what happened in this matter between the date of the High Court's decree dismissing the suit in 1912 and the filing of the application now before us in 1917. An application for restitution was made within reasonable time after the High Court's decree, namely, in January 1913, (none of the copy of applications before us bears its real date, but there is no dispute about the date) against Bansidhar and other person, some of whom had obtained under an attachment possession of the money whish had been deposited in Court by the judgment-debtors, and others of whom had purchased property of the judgment-debtors sold under the decree. An order was made by the Subordinate Judge entering in favour of the original judgment-debtors who obtained all they wanted so far as the Court's orders were concerned, and who subsequently under that order of restitution obtained re-payment of their monies, and also possession of some of the property whish had been sold. The extent to which they obtained actual possession is not in evidence before us. The purchaser of the property appealed against this order, and the High Court allowed the appeal and ordered the purchaser to be restored to the possession of the property whish had been made over to the original judgment-debtors under the order appealed from. This order of the High Court is dated the 11th February 1916. Thereafter, namely, in May 1917 the judgment-debtors, as they formerly were, filed the application, whish is now before us, against Bansidhar for restitution of the lost suffered by them in consequence of the sale, whish had been upheld in favour of the bona fide purchaser.
6. If the right to make this application against Bansidhar arose upon the making of the High Court's order in February 1916, the application is clearly in time. In our opinion it did not. The right against Bansidhar, and this right (if any) against his transferees, were concurrent rights. The applicants were not compelled to proceed against the purchaser. Their failure created no right against Bansidhar whish they could not have averted--in fast they did assert it--in their original application in 1913. We entertain some doubt about the correctness of this view, but in our opinion it does not arise as we are satisfied that the present application is in substance a continuation of the original application against Bansidhar.
7. Both the applications filed in 1913, and in 1917, are inform inaccurate, loose and embarrassing. They purport to be applications for the execution of a decree under Order XXI, Rule 11. There was no decree in existence. They describe the applicants as decree holders, and the respondents as judgment debtors, which they were not. They ask for she 'decree money' to be recovered by attachment and sale. This relief, of course, which is in the nature of execution, could only be granted after an order of restitution had been made and had been followed by default. But the application does contain--and this is the only substantial matter beaming upon the questions we have to decide--an application for relief against Bansidhar, in respect of the property of the applicants which he had sold, in the following form: 'in case possession over the said property is not awarded' (i.e., as against the purchasers) 'the sale proceeds may be award, ed against judgment-debtors Nos. 1 to 11.' That was an alternative application against the present respondent. It has never been abandoned. The Court made no order upon it, erroneously awarding possession as against the purchaser. The present application contains, in form, all the faults of its predecessor, and certainly, in form, reads like a new and substantive application. It refers to the application of 1913 as the first, application. Having adopted a form applicable to a totally different set of circumstances, and another kind of relief, the applicants went from one blunder to another and used language which is wholly imaginative and unreal. But the Courts do not sit as disciplinary bodies to punish parties for inept procedure, when their right is clear and no misunderstanding, surprise, or prejudice can occur to the other side. The real meaning of the application was perfectly well understood by both parties, and by the Court. The application ought to be amended in form as a continuation of the application for restitution under Section 144 made against Bansidhar originally in 1913 in respect of the loss incurred by the sale of the applicants' property. To this, they are clearly entitled. The appeal must be allowed, and the application remanded to the Court below with directions to allow it to be amended and put in proper force, and to proceed to find the sum to which the applicants are entitled. The appellants must have their costs here and below, in this Court on the higher scale.
8. We think it well to observe that all the lower Courts ought without further delay to abandon the use of these forms under Order XXI for proceedings under Section 144 of the Code, and either to issue suitable forms for the use of applicants, or to insist upon all applications being framed in appropriate language with the appropriate claim for relief before proceeding to adjudicate upon them.