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Lala Birj Lal and ors. Vs. Lala Damodab, Das - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in66Ind.Cas.545
AppellantLala Birj Lal and ors.
RespondentLala Damodab, Das
Cases ReferredMadhusudan Das v. Birj Lal
Excerpt:
.....of section 144, and inasmuch as its only authority was derived from the final decree of the privy council, it same within the expression used in article 183 of the limitation act, as being an application to enforce an order of his majesty in council, the words whish we have just quoted are clearly sapable of being read so as to cover an application of this kind whish is in substance to enforce a decree of the privy counsil whish restored the parties to the position they were in before the high court interfered. it was an application to recover certain costs, and although the order of the privy council as to coats was that there should be no order as to costs, this had the effect of reversing the order of the high court which bad given the respondent to that case costs which he had......against a person who had become a transferee of a decree whish was subsequently set aside in the privy council in favour of the present appellants. the transferee was not a party to the proceeding in the privy council, but under the decree whish the privy council set aside and of which he had besoms the transferee, he obtained possession of certain property and was, therefore, in the enjoyment of mesne profits in respect of it. the application to the court below whish was in substance a proceeding under section 141, but whish adopted all the forms applicable to execution proceedings, asked that the respondent should account for mesne profits during the time whish he had been unlawfully in possession under a decree whish had been set aside. the application was dismissed by the court.....
Judgment:

Walsh, J.

1. This appeal raises two points. It was an application in the Court below against a person who had become a transferee of a decree whish was subsequently set aside in the Privy Council in favour of the present appellants. The transferee was not a party to the proceeding in the Privy Council, but under the decree whish the Privy Council set aside and of which he had besoms the transferee, he obtained possession of certain property and was, therefore, in the enjoyment of mesne profits in respect of it. The application to the Court below whish was in substance a proceeding under Section 141, but whish adopted all the forms applicable to execution proceedings, asked that the respondent should account for mesne profits during the time whish he had been unlawfully in possession under a decree whish had been set aside. The application was dismissed by the Court below on the ground that it was time-barred by Article 181 of the Limitation Act, and, secondly, on the ground that the respondent was not a party to the decree whish gave rise to the application, A further point was raised under Order II, Rule 2 of the Code of Civil Procedure whish obviously has no substance. The case has been extremely well argued on both sides before us and a great number of authorities have been sited on this vexed Question. It is not desirable to add more than one is obliged to the tangle which appears to exist with regard to the method of reconciling proceedings under Section 141 with other provisions of the law. It so happens that in the case before us the point whittles itself down to a comparatively narrow compass. We agree with the decision of this Court in the case of Jiwa Ram v. Nand Ram. 66 lad, Cas, 144 : 20 A, L, J. 226. that proceedings under Section 144 of the Code are not execution proceedings, although they are, of course, in the nature of proceedings in execution to enforce either directly or indirectly the final decree. We do not agree with the lower Appellate Court that it is nesessary that a party to an application under Section 144 should have been a party to the decree. Section 144 is very wide in its terms. It includes matters which an Execution Court or an Appellate Court could not ordinarily deal with, and the word 'party' is not used in that section in the sense 'party to the suit', whish the expression ordinarily found in other parts of the Code dealing with execution matters but must mean, party to the application.' It so happens that in that particular case the matters arising out of the final decree of the Privy Council have been already on more than two occasions before this Court, although not always as between the identical parties now before us. We have desided to follow the view taken by this Court in the same or sognate matters arising out of this Privy Council decree. That is to say, firstly, this Court has already held that Damedar Dae, although not a party to the Privy Council decree, was bound to give up possession and that an application under Section 141 was properly made against him. We agree. That disposes of the second point decided in his favour by the lower Court. Mr. Justice Stuart in a previous matter whish same before him by way of first appeal in May of last year [the case is Madhusudan Das v. Brij Lal (2)] held that the application was one justified by the provisions of Section 144, and inasmuch as its only authority was derived from the final decree of the Privy Council, it same within the expression used in Article 183 of the Limitation Act, as being an application to enforce an order of His Majesty in Council, The words whish we have just quoted are clearly sapable of being read so as to cover an application of this kind whish is in substance to enforce a decree of the Privy Counsil whish restored the parties to the position they were in before the High Court interfered. We thick the only logical course to take, whatever academic view one might take as a matter of construction in the interpretation of these somewhat difficult provision?, is to follow the view takan by Mr. Justice Stuart in the case of Madhusudan Dai v, Birj Lal 6l lnd, Cas, 806. The appeal must be allowed and the case restored to the lower Court to deal with on the merits. The appellants will have the costs of this appeal. Costs in the Court below will abide the result.

Ryves, J.

2. I agree generally. The fasts oat of whish this case arises are as follows. Some persons sued the appellants for possession of land. They succeeded partially in the Trial Court but on appeal in this Court, succeeded entirely. Thereupon they executed their decree and got possession of the land and then they transferred a part of the decree to the respondent and put him in possession of a corresponding portion of the land. Thereafter, the appellants appealed to His Majesty in Council. The respondent was not made a party to that appeal. On the 9th of February 1914 the Privy Council passed a decree reversing the decree of this Court and dismissed the suits. It went on to direst that the parties should bear their own costs. On the 8th of Marsh 1914 the appellants applied to the Subordinate Judge to obtain restitution of possession of the land of which they had been deprived. They based their application on a printed copy of the judgment of their Lordships of the Privy Council which had been supplied to them by their Solicitor in England. It was objected by the other side that the application to the Subordinate Judge was premature and that in any case it could not be, based on the report of the Privy Council. it was pointed out that, under Order XLV, Rule 15, it was nesessary to apply, first of all, to the High Court to transmit the decree of the Privy Council before its execution could be taken out. The Subordinate Judge overruled this objection. On appeal this Court upheld it. The judgment is reported, Damodar Dai v. Birj Lal 30 Ind. Cas. 77 : 37 A. 567 : 13 A. L. J. 769., and I will refer to it later, There were two farther applications made to the Subordinate Judge, one for recovery of possession and the other for costs. Both of these were made within three years of the decree of the Privy Council, that is, the 9th of February 1914. The present application was filed on the 4th of September 1918 for mesne profits for the period during which the appellants had been kept out of possession of the property, The lower Court rejected application on three grounds. Firstly that it was barred by Article 181 of the First Sehedule to the Limitation Act, on the ground that an application for restitution was net an application in execution of a decree, and, therefore Article 182 did not apply. It also held that Article 183 was not applicable, because it was not an application to enforce in terms the decree of the Privy Council. It, therefore, held that the only other Article possible was Article 181 and that under that Article the application was barred by time. It also held that, inasmuch as the respondents were no party to the appeal in the Privy Council, they were not bound by that decree Thirdly, it applied Order II, Rule 2 as barring the application. On this ground also it dismissed the application. On appeal before us all three points have been attacked. The third point has not been pressed. On the second point, I think, it is snfficient to say that in previous proceedings for restitution and costs in this very litigation arising out of this decree and in connection with the same property, it has been finally held by this Court that the respondents though no party to the appeal are bound by the decree. They, therefore, in my opinion cannot raise that objection again. On the first point. I feel considerable difficulty. It has now been held by this Court in the case of Jiwa Bam v. Nanl Ram, (1) that an application under Section 141 of the Code is not a proceeding in execution under the Code of Civil Procedure. It is unnecessary, I think, to refer to any other rulings of other Courts. The question, however, remains as to whether, assuming that it is not an application for execution, what is the Article of Limitation which would apply. It has been held in the cases of Bam Singh v. Sham Parshad Ind. Cas. 301 : 67 P. E. 1918 : 36 P. W. K. 1918 : 36 P. W. R. 1918., Krupasindhu Boy v. Mahanta Balbhadra Das 47 Ind. Cas. 47 : 3 P. L. J. 367. and Asha Bibi v. Nuruddin 30 Ind. Cas. 680 : 8 Bur. L. T. 165 : 8 L. B. R. 262. from Burma that applications under Section 144 come within the purview of Article 181 of the Limitation Act. On the other hand, the Bombay High Court, in the case of Hamidalli v. Ahmedalli 62 Ind. Cas. 233 : 15 B. 1137 : 23 Bom. L. R. 480, and the Madras High Court, in the case of UnnamaLai Ammal v. Mathan 62 Ind. Cas. 583 : 33 M. L. J. 413 : 6 L, W. 389 (1917) M. W, N. 643 : 22 M, L. T. 339,, have held that applications under Section 144 fall within Article 182 of the Limitation Act. I may paint out that all these cases refer to applications under Section 144 fro a decree of the High Court and that, therefore, Article 183 was not and could not have been considered. It has been argued that in the case already mentioned Damodar Das v. Birj Lal (3)] this Court has really decided the matter and held that an application of this kind is really a proceeding in execution. In my opinion, however, in order to appreciate that decision it is necessary to examine what were the actual fasts before the Court. There an attempt had been made to execute the decree of the Privy Council in the Court of the Subordinate Judge on the basis of a copy of their printed judgment only, and without having adopted the procedure Laid down in Order XLV, Rule 15. This Court held that Order XLV, Rule 15 provides that whosoever desires to obtain execution of any order of His Majesty in Council must first apply under that particular order before they can proceed further and it goes on to say that the word 'execution' in that Order is intended to cover execution of any kind because, as they point out, that, but for the presence of Order XLV, Rule 15; there would be nothing to show what steps should be taken to execute a decree or to give effect to a decree of His Majesty in Council.

3. In my opinion that case takes us no further. The only case to which we have been deferred in which a Privy Council decree has been the subject of decision, is Execution First Appeal No. 93 of 1920, decided by a Single Judge of this Court on the 7th of May 1921, which has been reported as Madhusudan Das v. Birj Lal (2). There, although it appears from the report that Damodar Das was a party, he is not the same individual as is the respondent here. That case is not in any way ret judicata, but it is a decision among other parties to the same litigation and gives effect to the same decree of the Privy Council. It was an application to recover certain costs, and although the order of the Privy Council as to coats was that there should be no order as to costs, this had the effect of reversing the order of the High Court which bad given the respondent to that case costs which he had. recovered. Mr. Justice Stuart held that the only authority for the recovery of costs which Birj Lal paid to Musammat Indar Kuar was the order of His Majesty in Council. He held, therefore, that although that application was under Section 141 of the Code, nevertheless the period of limitation applicable was that provided by Article 183 The language of Article 183 is different to that of Article 182, Article 183 provides for 'the execution' of a decree or order of any Civil Court. Article 183 is 'to enforce' a judgment, decree or order...of His Majesty in Council. It seems to me that the words to enforce' there are wider in meaning than the words to execute' in Article 182 and should be interpreted as equivalent to 'to give full effect to' which is synonymous with to enforce.' In my opinion, therefore, the order of Mr. Justice Stuart was right and we should follow it. I would, therefore, allow the appeal.

By the Court.

4. The order of the Court is that the appeal must be allowed and the case restored to the lower Court to deal with on the merits. The appellants will have the costs of this appeal. Costs in the Court below will abide the result.


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