S.K. Ray, J.
1. The two aforesaid appeals are by two sets of judgment-debtors in an execution proceeding and are from the same order dated 18-3-1974 passed in Misc. Case No. 213 of 1972 in Execution Case No. 193 of 1971 by which their application under Section 47, Civil Procedure Code was rejected. Judgment-debtors 1 to 19 who are the legal representatives of defendant No. 2, and defendant No. 3, who is judgment-debtor No. 20, in the said execution proceeding are the appellants in M. A, No. 68 of 1974 Judgment-debtors Nos. 21 to 27 who are the legal representatives of defendant No. 1 in the same execution proceeding are the appellants in M. A. 70 of 1974.
2. To understand the nature of the objections raised by the judgment-debtors in the execution proceeding, it is necessary to narrate some background facts The plaintiff-decree-holder filed Title Suit No. 42 of 1957 for specific performance of contract. Late Nikunja Kishore Das the original owner of the property was im-pleaded as defendant No. 1 and his transferees Gulab Ray and Madumal were impleaded as defendants 2 and 3. This suit was decreed on 30-6-1961 with costs assessed at Rs. 3,589.87 p. The defendants 2 and 3 came up in appeal to this Court in First Appeal No. 60 of 1961. By judgment dated 24-12-1963 the First Appeal was allowed, the plaintiff's suit was dismissed and the suit was remanded to the trial court for fresh hearing on the additional issue as to whether defendant No. 1 was liable to pay damages. The High Court awarded costs of the appeal as well as of the trial court in favour of defendants 2 and 3 against the plaintiff. The cost computed as payable to those defendants against the plaintiff in the trial court decree was Rs. 1,098.25 and costs awarded against the plaintiff in the High Court decree was Rs. 5,219.94. Defendants Nos. 2 and 3 levied execution for costs awarded in the High Court decree in Execution Case No. 14 of 1964. The aggregate amount of costs both in the High Court and in the trial court (Rupees 6,318.19 p.) together with cost of execution amounting to Rs. 6,447.09 p. was paid by the plaintiff in this execution case on 35-4-1965.
3. Three appeals were preferred to the Supreme Court, one by the plaintiff, second by defendants Nos. 2 and 3 and the third by defendant No. 1. Plaintiff's appeal was numbered as Civil Appeal No. 1050 of 1965, the appeal by Defendants Nos. 2 and 3 was numbered as Civil Appeal No. 1051 of 1965 and the appeal by defendant No. 1 was numbered as Civil Appeal No. 1052 of 1965. All the three appeals were heard by the Supreme Court and disposed of by judgment dated 10-9-1968. The operative portion of the judgment is extracted hereinbelow:--
'In the result Civil Appeal No. 1050 of 1965 is allowed, the decree of the High Court set aside and that of the Trial Court restored with the modification that defendant No. 1 is directed to make the necessary application to the Khasmahal Officer within one month for permission to transfer the property to the plaintiff, and further within one month of the receipt of that sanction defendants Nos. 1. 2 and 3 shall convey to the plaintiff the property in dispute.
XX XX XX In view of the reasons given above, Civil Appeal No. 1051 of 1965, which was filed by defendants Nos. 2 and 3 and Civil Appeal No. 1052 of 1965 which was filed by defendant No. 1, to challenge the finding of the High Court that the contract between the plaintiff and defendant No. 1 was made on August 15, 1957, fail and are dismissed. The plaintiff is entitled to cost in the three appeals. ............'
4. On a perusal of the decrees of the trial court, of the High Court and ofthe Supreme Court, it would be seen that the trial court awarded costs of Rupees 3,589.87 to the plaintiff against the defendants and costs awarded to the plaintiff in the Supreme Court was Rs. 1.071.68. Costs awarded against the plaintiff to the defendants in the First Appeal which had been realised by the defendants in Execution Case No. 14 of 1964 amounted to Rs. 6,447.09.
5. The plaintiff filed a petition under Order 45, Rule 15, Civil Procedure Code before the High Court to transmit it to the court of first instance for execution. This petition was transmitted to the First Additional Sub-Judge as the Second Additional Sub-Judge's Court was abolished and all matters pending therein were transmitted to the First Additional Sub-Judge. After transmission, the petition was registered as Execution Case No. 193 of 1971. The plaintiff sought recovery of costs awarded to him against the defendants in the trial court together with costs awarded to him in the Supreme Court and restitution of the amount of Rs. 6,447.09 as the same had been realised from him under a decree which had been reversed by the Supreme Court.
6. The objection of the judgment-debtors in the execution proceeding was against the levying of execution for costs awarded to the plaintiff by the trial court and for recovery of Rs. 6,447.09 by restitution. There was no objection to execution of the costs awarded by the Supreme Court. The objections, in substance, were that though costs had been decreed by the trial court in favour of the plaintiff, the same cannot be recovered because the Supreme Court has not directed recovery pf that trial court's costs that the plaintiff is not entitled to restitution as no separate application under Section 144 has been filed, no specific order has been obtained, no ad valorem court-fee has been paid and the application for restitution has not been made in the court of first instance.
The executing court repelled these objections and dismissed the Misc. Case by holding that the objections raised by the judgment-debtors are not barred by constructive res judicata, that even though there is no specific direction in the judgment of the Supreme Court, nevertheless, in consequence thereof the decree-holder is entitled to recover the amount realised by the judgment-debtors in Execution Case No. 14 of 1964, and that the execution is not hit by Order 45, Rule 15. He, however, disallowed the claim of interest, but from this part of the order the plaintiff has preferred no cross-appeal.
7. Therefore, two questions arise for consideration in these appeals, namely:--
(i) Whether the costs of the trial Court and the High Court realised by the judgment-debtors-appellants in the previous execution case (Execution Case No. 14 of 1964) can, in law be restituted to the plaintiff-decree-holder in the present execution proceeding filed under Order 45, Rule 15. Civil Procedure Code executing the decree of the Supreme Court passed in Civil Appeals Nos. 1050, 1051 and 1052 of 1965; and
(ii) Whether in executing the Supreme Court decree awarding 'cost in the three appeals', the plaintiff-decree-holder can execute it for the costs of the trial Court awarded to him against the defendants, in the present execution application.
8. I will take up the second question first, viz., whether the plaintiff is entitled to costs awarded to him by the trial Court The relevant portion of the judgment of the Supreme Court has already been extracted above by which the decree of the High Court is set aside and that of the trial court is restored with the modification indicated in the judgment. Restoration of the trial Court decree means its restoration in its entirety including the costs awarded by it to the plaintiff. Relying upon the expression, 'The plaintiff is entitled to costs in the three appeals' occurring in the judgment of the Supreme Court. Mr. Mohanty, learned counsel for the appellants argued that the Supreme Court awarded costs of that Court only and not the costs awarded to the plaintiff by the trial court. For this reliance was placed upon the decision of the Calcutta High Court in the case of Surendranath Roy Chowdhury v. Girijanath Roy. (1912) 15 Cal LJ 658. That case deals with original courts and appellate courts, the drawing up of whose decrees and providing for costs in the same are governed by Section 35, Order 41. Rule 35 Sub-rule (3) and Order 42 of Civil P. C. Section 35 gives a discretion to the Court to grant costs and if it refuses to award costs to any party, it has to five reason for the same. Order 41. Rule 35, Sub-rule (3) mandatorily requires the first appellate court to state the amount of costs incurred in the appeal, and by whom, or out of whose property, and in what proportion such costs and the costs in the suit are to be paid. This principle has to be followed in Second Appeal as provided by Order 42 making the rules of Order 41 applicable so far as appeals from appellate decrees are concerned. Keeping these provisions in mind, omission in the decree of the first appellate court or of the second appellate court directing the respondent in those courts to pay the costs of the plaintiff of the court of first instance might be construed as refusal to award costs to the plaintiff in the court of the first instance. But to decrees of the Sup-reme Court. Order 45 of the Civil P. C. is applicable and Order 41 or Order 42 does not govern the decrees passed by the Supreme Court. There are no similar provisions in Order 45 requiring the Supreme Court decree to state about the costs of the trial court. Therefore, omission to mention about it would not give rise to the same inference as was done in the Calcutta case just referred to. Part IX. Order XLI of the Supreme Court Rules, 1966 provides that the cost of all proceedings in the Supreme Court shall be in the discretion of the Court and the costs shall be computed by the Taxing Officer under Order XLII of the said Rules. In absence of any provision in the Supreme Court Rules requiring the Supreme Court to mention about who is to pay the costs of the trial court and in what proportion or out of whose property such costs are to be realised non-mention about such matters regarding costs of trial court is not open to any interpretation that the costs of the trial court has been refused.
The Allahabad High Court in the case of Behari Lal v. Khub Chand, (1884) ILR 6 All 48. held that the executing court while executing the decree of the appellate court can execute it for the costs awarded by the trial court whose decree by affirmance merged in the decree of the appellate court as well as the costs expressly set out in the appellate decree being the costs of that court. This is based upon the theory of merger of the trial court decree in the appellate court decree by reason of affirmance. This theory of merger has been accepted by the Privy Council in the case of Krishna Kinkur Boy v. Raja Burrodakaunt Roy, (1870) 14 Moo Ind App 465 at p. 482 where it has been said that the decree of the High Court affirming the decree of the Zilla Court is to be taken to incorporate the latter in itself so that for the purpose of execution the decree to be executed is to be taken as decree of the High Court. This doctrine of merger is again reiterated by this Court in the case of Ajoy Kumar Moharana v Ghanashyam Moharana, (1975) 41 Cut LT 438, where it has been said that the trial court decree merges in the appellate court decree which alone subsists and is enforceable. Applying this doctrine, the awarding of costs by the trial court to the plaintiff against the defendants shall be construed as being bodily lifted into the Supreme Court decree by reason of its affirmance. The Supreme Court instead of merely affirming has specifically said that the trial court decree is restored. Apart from invoking the doctrine of merger, it must be said that the Supreme Court by directing restoration of the trial court decree must be construed as directing costs to be paid to the plaintiff in the court of first in-stance. Therefore, the objection of the judgment-debtors that the executing court cannot execute the decree for costs of the trial court has been rightly overruled.
9. I will now come to the first point The execution application in the instant case is for executing the decree of the Supreme Court and of the trial court for costs, and for restitution.
The main ground of objection of Mr.Mohanty is that there can be no restitution made by the executing court in executing an application filed under Order 45. Rule 15 (1), Civil Procedure Code for execution of the Supreme Court decree. An application for restitution has to be filed in the court of the first instance under Section 144. Civil Procedure Code. That not having been done, execution to the extent of restitution must be held to be without any authority of law or without jurisdiction. This argument proceeds on the footing that an application for restitution is not synonymous with an application for execution. I think all these objections appear to have been sufficiently met in the decision of the Supreme Court in the case of Mahijibhai v. Manibhai, AIR 1965 SC 1477. True it is that their Lordships of the Supreme Court were determining the question of applicability of the proper article of the Limitation Act to a petition for restitution under Section 144 and held that Article 182 will govern such an application but in that connection they pointedly posed the question as to whether an application for restitution under Section 144 of Civil P. C. is an application for execution of a decree and, after elaborate consideration of the conflict of views of the different High Courts in India, laid down as a general proposition that an application for restitution is an application for execution. As the language of Section 144. Civil Procedure Code did not afford much assistance in resolving the problem posed, their Lordships proceeded to ascertain its nature, aim, ambit and object by considering its previous legislative history, by considering what the law was before enactment of Section 144, what was the mischief or defect for which the law had not provided, what remedy Parliament had appointed and the reason for the remedy. In the C. P. C., 1859 there was no express provision for restitution; but the scope of doctrine of restitution at that time was considered by the Judicial Committee and the principle was enunciated in the following words:--
'............ this rule of law rests, astheir Lordships apprehended, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, themoney recovered under it ought certainly to be refunded, and. as their Lordships conceive, is recoverable either by summary process, or by a new suit or action, .....'
This passage was construed by the Supreme Court as laying down that the rights and liabilities of parties should be dealt with only under the decree superseding the earlier decree and that restitution could be made either by summary process or by a new suit or action. Then came the Civil P. C., 1882 which by Section 583 expressly provided for restitution. According to this section, a party entitled to any 'benefit by way of restitution or otherwise under a decree' passed in an appeal could file an application in the court of the first instance for executing the appellate decree. Considering various decisions, their Lordships of the Supreme Court said that under Section 583 a party would be entitled to restitution though restitution was not expressly provided for by the decree and that an application for restitution under the said section was an application for execution of an appellate decree and that a separate suit would not lie. Thus, proceedings by way of restitution are proceedings for execution of appellate decree even though that decree did not expressly provide for restitution. Their Lordships further go on to say:--'............ The appellate Court whichset aside or modified the decree of the first Court could give a direction providing for restitution. Even if it did not expressly do so, it should certainly be implied as the appellate Court could not have intended otherwise. The setting aside of the decree itself raised by necessary implication that the parties shouldbe restored to their original position. .....'
In the perspective of this legislative background. Section 144. Civil Procedure Code, according to their Lordships, is more comprehensive than Section 583 of the Code of 1882. Dealing with Section 144. which does not create any right of restitution, the Judicial Committee of the Privy Council in the case of Jai Berham v. Kedar Nath Marwari, AIR 1922 PC 269, said:--
'It is the duty of the Court under Section 144 of the Civi' P. C. to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty of jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.'
Their Lordships of the Supreme Court adverting to this section say:--
'............ The section does noteither expressly or by necessary implica-tion change the nature of the proceedings. Its object is limited. It seeks to avoid conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for. When a party, who lost his property in execution of decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the, relief of restitution, because the appellate decree, enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree.'
At another part of the decision, the Supreme Court has reiterated more clearly the view already expressed that an application for restitution is one for execution of the decree, which in the instant case is the decree of the Supreme Court. It logically follows therefore, that the decree-holder in seeking the relief of restitution in his execution application is not initiating any original proceeding but is only working out the Supreme Court decree which enables him to obtain the relief granted, at least, by necessary implication.
In claiming the relief of restitution in his application for execution of the Supreme Court decree, the decree-holder is merely enforcing or implementing the said decree which enables him to obtain that relief by necessary implication. Therefore, in essence and in reality the application for restitution being an application for execution of Supreme Court decree was rightly filed in High Court under Order 45. Rule 15, Civil Procedure Code for transmission to the court of first instance, and the latter court being the executing court can direct restitution as claimed.
The same conclusion is reached, if viewed from another angle. The application for execution so far as it related to execution of Supreme Court decree was undisputably legally filed under Order 45, Rule 15 and transmitted to the court of first instance for execution. Legality of such filing and transmission is not affect-ed merely because there was a further prayer for restitution and considered as an application for restitution it was wrongly filed in High Court who sent it to the court of first instance. Irregularity in initial filing was thereby regularised and the executing court being the court of first instance by entertaining the application for restitution will be deemed to be legally seized of it as if this application for restitution was first presented to it.
Thus this first point is answered in the affirmative and the abjection to execution on that ground, necessarily, fails.
In the result, both the appeals are dismissed with costs.