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Jiwa Lal Evide Vs. Kharagjit Singh Misra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All126; 157Ind.Cas.677
AppellantJiwa Lal Evide
RespondentKharagjit Singh Misra
Cases ReferredLakshminarayan Hiralal v. Laduram Onkar Agarwala
Excerpt:
- - , was clearly applicable......for costs arid that the execution application of defendant 1 should be dismissed. subsequently the present application had been made for the refund of the amount paid by the court to defendant 1, rs. 257-4-0, with interest and costs. this application is headed 'application under section 144, civil p.c.'2. the lower court has disallowed the application on the grounds that section 144 does not apply. the first ground of appeal to this court is that section 144/47, civil p.c., was clearly applicable. section 144(1) begins 'where and in so far as a decree is varied or reversed.' now, the decree for costs was granted by this court and it has not been varied or reversed. section 144 allows restitution in the particular case where an appellate court varies or reverses a decree of a lower court.....
Judgment:

Bennet, J.

1. This is an execution first appeal by a judgment-debtor under the following circumstances:

The appellant as plaintiff had brought an election suit against defendant 1, Rai Bahadur Kharagjit Singh Misra and defendant 2, the District Board of Mainpuri. In appeal this Court dismissed the appeal of the plaintiff with costs to the respondents-defendants. Defendant 1 applied for execution of the entire decree for costs of this Court. Objection was taken by the plaintiff that the decree for costs was a joint decree and not intended for defendant 1 alone. The lower Court dismissed this objection on 1st April 1930. Subsequently a warrant was issued in execution and the whole costs were paid into the lower Court and an inquiry was made by the lower Court from the District Board, defendant 2, as to whether anything had been spent in the High Court as costs of the case and the District Board replied that nothing had been spent by them. On this assurance the lower Court passed an order on 11th July 1930, that the whole amount of costs deposited should be paid to defendant 1. The plaintiff brought an appeal in the High Court against the order of 1st April 1930 but he did not bring any appeal against the order of 11th July 1930. The appeal of the plaintiff was allowed on 22nd August, 1931, and this Court held that defendant 1 alone was not entitled to execute the decree for costs arid that the execution application of defendant 1 should be dismissed. Subsequently the present application had been made for the refund of the amount paid by the Court to defendant 1, Rs. 257-4-0, with interest and costs. This application is headed 'Application under Section 144, Civil P.C.'

2. The lower Court has disallowed the application on the grounds that Section 144 does not apply. The first ground of appeal to this Court is that Section 144/47, Civil P.C., was clearly applicable. Section 144(1) begins 'where and in so far as a decree is varied or reversed.' Now, the decree for costs was granted by this Court and it has not been varied or reversed. Section 144 allows restitution in the particular case where an appellate Court varies or reverses a decree of a lower Court and in that particular case only. There has been no variation or reversal by an appellate Court of a decree of a lower Court in the present case. Accordingly Section 144, Civil P.C., has no application. There may be many cases in which a party may consider himself entitled to restitution. It does not follow that the Code has provided for all these cases. In particular Section 144 provides for only one case, that is, the variation or reversal of a decree by an appellate Court. Now, as regards Section 47, this section states:

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

3. This sub-section refers to three matters the execution, discharge or satisfaction of the decree. The execution of a decree is the carrying out of a decree; the discharge or satisfaction of the decree also involves the idea of carrying out the decree. None of these three words imply restitution which is a different idea and implies the restoring of something which has been taken in execution, and to that extent the rectification or alteration of some proceeding in execution discharge or satisfaction. Restitution is in fact the converse of the ideas embodied in Section 47. For authority for the proposition that restitution can be made in the present case learned Counsel for appellant has referred to Lakshminarayan Hiralal v. Laduram Onkar Agarwala 1932 Bom. 96, a ruling of a learned Single Judge. In that ruling it was held that restitution could be granted by 'liberally' applying Section 144 and Section 47. The particular facts of that case were different. In that case the lower Court had valued certain bales at Rs. 143-2-6, for which plaintiff had given credit to defendant. That finding was reversed by the appellate Court which valued the bales at over Rs. 5,500. As a result of the appellate Court's order the judgment-debtor was held to have paid more in execution than was under the decree. Under those circumstances it was held that restitution could be granted. The circumstances are different from the present case.

4. In the present case I consider that the remedy of the appellant was to appeal against the order of 11th July 1930 by which the Court directed the whole amount in deposit to be paid to defendant 1. No appeal was taken against that order and by neglecting to take an appeal the appellant has lost any right to have that order varied I which he might have had. Learned, counsel argues that because this Court dismissed the application for execution and held that defendant 1 alone should not apply for execution therefore ipso facto all orders passed in execution fell to the ground. Even if that argument were correct it does not follow that the remedy of restitution which is I confined by Section 144, Civil P.C., to the particular case of the variation or reversal of a decree can be applied to the present case. For these reasons I consider that the order of the lower Court is correct and I dismiss the first appeal in execution with costs. As questions of law have arisen I grant permission for a Letters Patent appeal.


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