1. This is an Execution First Appeal by one Mt. Ram Dei against whom the opposite party Mangan Lal obtained a decree for sale of her share of a house and the share of other persons. In this Court in appeal Mt. Ram Dei obtained a reversal of this decree. Meanwhile the house had been acquired by the Improvement Trust and the four annas share of Mt. Ram Dei had been converted into Rs. 12,800 cash. The opposite party withdrew this money. After the decree of this Court Mt. Ram Dei applied for restitution of this money under Section 144, Civil P.C., which was allowed. Subsequently the present application has been made in which Mt. Ram Dei states that she desires interest oh the amount from the date of withdrawal up to 30th June 1932, the date on which she received the sum in question. Objection was taken that as she had made an application under Section 144 for the principal amount she had no further right of restitution both on the ground of her claim being barred by Order 2, Rule 2, and on the principle of estoppel. The lower Court has held that the present application is barred by the principle of res judicata and by the provisions of Order 2, Rule 2.
2. In appeal it is contended by learned Counsel for the applicant that his client was unaware of the date of withdrawal of the money by the opposite party and therefore could not claim interest in the first application for restitution. This argument is obviously incorrect because the applicant might have claimed interest with effect from the date of withdrawal whatever it might be. It appears clear that interest was not claimed by an oversight. The appeal further proceeds that on equitable grounds the application should have been allowed and that the Court below erred in applying the procedure for suits to the present case. This is the main question in appeal as to whether Order 2, Rule 2, should be applied to the present application and learned Counsel for the respondent also relies on the provisions of Section 11, Civil P.C., Explanation 4. This explanation also refers to a former suit. The two provisions are somewhat similar and the question is whether this bar which the Code provides in regard to suits should be applied to the case of an application for restitution under Section 144, Civil P.C. Reference is made to various rulings. For the applicant reliance is placed on the ruling reported in Somasundaram Pillai v. Chokkalingam Piliai 1917 Mad. 185. In that ruling there was a similar case where a judgment-debtor had obtained restitution of a sum of money recovered from him in execution of a decree which was subsequently reversed on appeal, and later the judgment-debtor made a second application to recover interest for the period during which the decree-holder had the use of the money. The application was allowed. The Court held that the application was not barred by res judicata or by Order 2, Rule 2. The Court stated that it had been held that these rules did not apply to execution proceedings as a matter of course:
unless the decision of the question subsequently sought to be agitated was either expressly given or must be assumed to have been necessarily implied in the previous decision.
3. It is then stated that argument was made that an application for restitution is not a proceeding in execution and the Court observed:
We are unable to see the difference.
4. If the ruling had proceeded to state that a proceeding under Section 144, was similar to a proceeding in execution and therefore as the principles of Order 2, Rule 2, and res judicata under Expln. 4, Section 11 did not apply to execution proceedings, these rulings should not he applied to proceedings under Section 144, the argument in the ruling would in my opinion have been sound. The Court did however use language which indicates that the Court considered that proceedings under Section 144 were proceedings by way of execution and were covered by the language of Section 47, Civil P.C. I must admit that that view-is in conflict with various rulings of this Court and it is not a view which I can accept. In Jiwa Ram v. Nand Ram 1922 All. 223, it has been held that proceedings under Section 144, Civil P.C., are not proceedings in execution and a Bench of this Court has specifically dissented from the ruling in Somasundaram Pillai v. Chokkalingam Piliai 1917 Mad. 185, on this point. It docs not however follow that the principle of the Madras ruling is not correct although in justifying that principle the Madras Bench used reasons and language which this Court does not consider correct. The next ruling to which reference was made was Brij Lal v. Damodar Das 1922 All. 238. In that case there were three applications for restitution, the first one being or restitution of possession of certain property in accordance with the decree of an appellate Court. The second application was for refund of costs, and the third application was for restitution of mesne profits. Objection was taken as stated on p. 557 on various grounds, one of which was that as the decree-holder had not asked for mesne profits in the previous application the present application was barred by the provisions of Order 2, Rule 2. On p. 560 (of 44 All), one learned Judge stated:
A further point was raised under Order 2. Rule 2 Civil P.C., which obviously has no substance. On p. 562 the second learned Judge stated of the lower Court : 'Thirdly, it applied Order 2, Rule 2 as barring the application. On this ground also it dismissed the application. On appeal before us all the three points have been attacked. The third point has not been pressed.'
5. Reference is also made for the applicant to Karupasindu Roy v. Balbhadra Das 1918 Pat. 396. In that ruling a Bench held that an application for restitution under Section 144, Civil P.C., is neither a suit nor an execution proceeding. It is a miscellaneous proceeding to which the rules applicable to execution proceedings do in substance apply. Section 141, Civil P.C. does not apply to an application for restitution and such an application is not there fore subject to the provisions of Order 2, Rule 2 of the Code. That ruling proceeded on the grounds that it had been held by their Lordships of the Privy Council in Thakur Prasad v. Fakirullah (1895) 17 All. 106, that Section 141 was not applicable to an execution proceeding:
And if it is not applicable to an execution proceeding, I fail to see why it should be made applicable to a proceeding which is only of the nature of an execution proceeding. The learned Vakil for the respondents has strenuously contended that though the proceeding is miscellaneous, it is in the nature of an original suit. In my opinion this argument fails, for a suit must always be based on a cause of action. Here the defendant petitioner has no cause of action on which ho can claim relief from the plaintiff. T it is urged that the cause of action is a trespass, then the reply is that the plaintiffs were put in possession by a decree of Court and were not trespassers. Nor does the decree of the appellate Court per se constitute a cause of action. In my opinion the defendant had no cause of action on which ho could have based a suit against the plaintiffs, even if the law had not expressly forbidden him to proceed by a suit. His only remedy was to apply to the Court to proceed against the plaintiffs in exercise of its special powers. Therefore the rule applicable to several reliefs arising out of the same cause of action cannot be applied here.
6. I consider that this passage contains sound reasons as to why the rules in question should not be applied to proceedings under Section 144. Learned Counsel for the objector points out that in Jiwa Ram v. Nand Ram 1922 All. 223, it has been held that the provisions of Section 141, Civil P.C., do apply to proceedings under Section 144. The question before the Court was whether the provisions of the Code in regard to restitution of an application dismissed for default would apply to a proceeding under Section 144. I understand that the judgment relates to that portion of the Code only which deals with the power to restore such applications when dismissed for default, and I understand that the ruling does not lay down that all provisions of the Code should apply. In fact Section 141 itself definitely states that that is not so as it says:
The procedure provided in this Code in regard to suits shall be followed, as far as can be made applicable, in all proceedings in any Court of civil jurisdiction.
7. The question is whether the rules in question Order 2, Rule 2 and Expln. 4, Section 11 should be applied to proceedings under Section 144, Civil P.C. Are they the rules which can be made applicable to Section 144 or are they not? The mere fact that rules in regard to restitution are rules which can be made applicable does not imply that the other rules in question should also be applied. Now, besides the reasons given in the Patna ruling which I have quoted which are against the application of the rules in question it also appears to me that the rules in question arc intended for suits which are of a more formal nature than proceedings under Section 144. It is necessary that a suit should be more formal because in reply to a plaint there is a written statement filed and on it the Court frames issues. In regard to an application under Section 144 it is not usual to frame issues although issues may be framed. In particular in the present case I am told that issues were not framed. Further when a suit is brought the plaintiff ought to be in possession of all information on the subject of his claim. But the position of a person who is making an application under Section 144 may not be the same. He has information that, a decree has been granted by an appellate Court in his favour and he at once applies for restitution ok the property which was in suit. It may not occur to his legal advisers that besides restitution of the property the applicant may be entitled to further remedies such as mesne profits or interest. It would be contrary to the ends of justice if an applicant were to be dishonest because these matters did not occur to his legal advisers at the time that the application under Section 144, was made. In the case of a plaint the matter is different as the legal adviser drafting the plaint is well aware of the rule in Order 2, Rule 2, which requires that all reliefs should be mentioned in a plaint.
8. For these reasons I consider that Section 141, although it applies to proceedings under Section 144, does not require that the rules in question should be applied to those proceedings. Accordingly I allow this appeal on this preliminary point and I remand the application for disposal on the remaining-issues by the lower Court. Costs of this appeal in this Court will be granted to the applicant. Costs in the Court below will abide the ultimate result. The applicant is entitled to refund of the court-fee of this Court-Permission is granted for a Letters Patent Appeal.