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Mela Ram and ors. Vs. Dharam Chand Amrit Lal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 301/P of 1953
Judge
Reported inAIR1958P& H132
ActsLimitation Act, 1908 - Articles 181 and 182; Code of Civil Procedure (CPC) , 1908 - Sections 144 - Order 41, Rule 5
AppellantMela Ram and ors.
RespondentDharam Chand Amrit Lal
Appellant Advocate Kidar Nath Tewari, Adv.
Respondent Advocate Puran Chand and; J.K. Sharma, Advs.
Cases ReferredNagendranath Dey v. Suresh
Excerpt:
.....amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal..........lordships were discussing the provisions contained in article 182(2). they held that under that article limitation starts to run afresh from the date of the final decree or order of the appellate court. in the course of discussion their lordships observed:'the fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. but in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the word is, their lordships think, the only safe guide. it is at least an intelligible rule that, so long there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which if the final result is against them, may.....
Judgment:

Bishan Narain, J.

1. This reference raises a question of limitation. The facts relevant for the determination of this question are not in dispute. Dharam Chand and his brother sued to pre-empt a sale made in favour of llama Nand and obtained a pre-emption decree on payment of Rs. 1,400/-. The pre-emptors deposited this amount and it was withdrawn by the vendee. The pre-emptors appealed and the District Judge, Patiala, by his judgment dated 11-6-1949, varied the trial Court's decree and reduced the amount payable by the pre-emptors by Rs. 500/- to Rs. 900/-. The vendee appealed to the High Court, but it was dismissed on 28-11-1951. The pre-emptors thereafter filed an application under Section 144 Civil Procedure Code, claiming refund of Rs. 500/-against the sons of Rama Nand who had died in the meanwhile.

This application was made on 11-9-1952. The vendee's sons contested the petition on the ground of limitation and contended that an application lor restitution is governed by Article 181 of the Limitation Act and that the limitation started from 11-6-1949, the date of the judgment and decree of the District Judge, Patiala. This contention was rejected by Subordinate Judge, Raj-pura, as well as by the District Judge. In revision petition Gurnam Singh J. (the then Judge of the Pepsu High Court and now a Judge of this Court) noticed conflict in various High Courts on this question and referred it to a larger Bench. It has now come to us under the orders of the Hon'ble the Chief Justice.

2. This question of limitation is divisible in two parts (1) whether an application under Section 144, Civil Procedure Code, is covered' by Article 181 or Article 182 of the Indian Limitation Act, and (2) if Article 181 applies, then whether limitation starts from the date of the decree of the District Judge who varied the decree of the trial Court or from the date on which the second appeal was dismissed by the High Court.

3. In the present case the pre-emptors' case is that an application under Section 144, Civil Procedure Code, is an application for execution and is governed by Article 182 of the Limitation Act. It is common ground between the parties that if Article 182 is not applicable, then the residuary Article 181 applies to such an application.

4. The question that requires determination is whether a claim for restitution is to be enforced by a miscellaneous application or by an application for execution. Now, the first column of Article 182 makes this Article applicable to all applications 'for the execution of a decree or order ..................,..........' An application for execution of a decree or order is a process provided by the statute, i.e. the Civil Procedure Code, to enforce a decree or order of a Civil Court. In execution proceedings the executing Court derives its authority only and solely from the terms of the decree or order sought to be executed and it must conform to its terms. It must carry put the mandate and directions contained therein. To put it differently an executing Court can only execute a decree or order according to its tenor and cannot travel beyond its terms. The right to restitution on the other hand arises when one obtains money or property of others without authority of law.

When a person unlawfully inflicts loss or injury to any person, then he is liable to make reparation to the injured person. In olden times this word 'restitution' used to denote the return of a certain thing or condition but now its meaning has been extended to include not only the restitution of the thing itself but also compensation for loss or injury caused to the party seeking restitution. This claim may arise in various ways, e.g. under a statute, under an implied contract or tort etc. This right in based on principles of natural justice. It is well established that when a decree is executed through Court against a person during the pendency of the appeal, then in the case of variation or reversal of the decree by the appellate Court, he is entitled to restitution of what he has been deprived by the enforcement of that decree.

This right is inherent in Courts of law and it is this light that has been given statutory recognition by Section 144 of the Code of Civil Procedure. The right of restitution by Section 144, Civil Procedure Code, is only one species of the same genus. That is one aspect of the right to get restitution. Ordinarily a right to restitution is to be enforced by a suit. In the Civil Procedure Code of 1859 there was no provision corresponding to the present Section 144. The question regarding right of restitution arising out of reversal of the trial Court's judgment was discussed by the Privy Council in Shama Purshad Roy v. Hurro Purshad Roy 10 Moo Ind App 203 (PC) (A), and it was observed:

'If it (the decree) has been so reversed or superseded, the money 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.'

The legislature has chosen to adopt the first alternative mentioned by their Lordships of the Privy Council, and Section 144, Civil Procedure Code, lays down that this right must be enforced by means of an application to the Court of First instance and not by a suit. It is, therefore, clear that the right to enforce a judgment by the process of execution is essentially different from the right to restitution under Section 144, Civil Procedure Code. If a decree of reversal is sought to be executed, then the successful party will get nothing, as according to its terms and tenor there is no mandate or direction to restore any property taken from him in execution of the trial Court's decree. The basic principles on which these two rights are based are different.

It is, therefore, not possible to hold that the application for restitution under Section 144, Civil Procedure Code, is on application for execution of a decree or order and it must be held to be a miscellaneous application, I should not be un-derstood to say that a claim for restitution can never be enforced by an application for execution. I believe in olden times in England it was usual lor the appellate Court in a judgment of reversal to direct in the judgment that the successful party be restored to all things which he had lost on account of the enforcement of the judgment under appeal. When such a direction is issued or, in other words, a decree to that effect is given by the appellate Court, then obviously the claim for restitution in that case would be effected by execution of the appellate decree.

5. It was then argued that the right to restitution under section 144, Civil Procedure Code, arises out of the Judgment and decree of variation or reversal by the appellate Court. This is a right to get back what was delivered to the other party in execution of the decree of the trial Court and that this can be done only by enforcing or executing the decree or order of the appellate Court. This argument found favour with Macleod C. J. in Hamidalli Kada-malli v. Ahmedalli Mhibuballi ILR 45 Bom 1137: (AIR 1921 Bom 67) (B). It is true that the right to restitution accrues from the decree or order of the appellate Court.

It is also true that this right is to be enforced by an application and not by a suit, but it does not follow, with great respect to that eminent Judge, that an application to enforce this right must necessarily be held to be an application for execution. Proceedings for restitution no doubt arise out of a judgment of reversal, but proceedings under Section 144 are independent proceedings raising new issues of fact which did not arise in the original suit. In the present case this right to claim restitution is not the right derived from any express mandate or direction incorporated in the appellate Court's decree of reversal but from the right given by Section 144, Civil Procedure Code. It follows, therefore, that the nature of an application under Section 144, Civil Procedure Code, must be determined by looking at that section and other provisions of that Code.

6. Lastly, it was urged that it has been held by the Privy Council in Prag Narain v. Kamakhia Singh ILR 31 All 551 (C) that an application for restitution is an application for execution and that the subsequent amendment in 1908 of the old Section 583 does not affect the position. This argument was accepted by a Division Bench of the Madras High Court in Somasunda-ram Pillai v. Chokkalinga Pillai, ILR 40 Mad 780: (AIR 1917 Mad 185) (D).

Section 583 of the 1882 Civil Procedure Code has been considerably modified in the 1908 Act. The old Section 583 specifically provided for enforcement of a claim for restitution on reversal of a decree by execution of the appellate decree. There is no such provision in the present section. Certain other modifications in the 1908 Act also lead to the conclusion that the proceedings claiming restitution under Section 144, Civil Procedure Code, are to be enforced by means of a miscellaneous application and that its nature is not the same as' that of an execution application.

7. Since the enactment of Section 144, Civil Procedure Code, there has been sharp conflict in the various High Courts on this question, but it is not necessary to discuss the varying authorities in detail. The Punjab High Court has consistently taken the view that an application under Section 144 is governed by Article 181 of the Limitation Act. The earliest case is Ram Singh v. Sham Prasad, 67 Pun Re 1918 : (AIR 1918 Lah 378) (E). This question ultimately came up before a Full Bench of three Judges. In a detailed and elaborate judgment the view accepted in 67 Pun Re 1918: (AIR 1918 Lah 378) (E) was affirmed (vide Managing Committee Sunder Singh Malha Singh Rajput High School, Indaura v. Sunder Singh Malha Singh Sanatan Dharam Rajput High School Trust, Indaura, AIR 1944 Lah 190 (FB) (F).

In the Allahabad High Court also the same view has prevailed and Sulaiman C. J. in Par-meshwar Singh v. Sitla Din Dube, ILR 57 All 26: (AIR 1934 All 626) (FB) (G) has given exhaustive reasons for coming to this conclusion. The conclusion of the Calcutta High Court in Hari Mohan Dalai v. Parmeshwar. Shau, ILR 56 Cal 61 : (AIR 1928 Cal 646) (H) (S B) is also the same. The Nagpur High Court in Allawali v. Kesharimal Ram Lal, air 1947 Nag 239 (I), has also come to the same conclusion. It is not necessary to cover all these grounds over again and to repeat the arguments that found favour with Sir Sulaiman which were reiterated by this Court in Firm Jagan Nath Kidar Nath v. Sitaram, AIR 1939 Lah 190 (J). It is sufficient to say that I am with great respect in full agreement with the arguments and conclusion of these eminent Judges.

8. In the Patna High Court there has been no uniformity of decisions. A Full Bench of three Judges in Balmukund v. Basanta Kumari Dasi, ILR 3 Pat 371: (AIR 1925 Pat 1) (K) by a majority decision held that Article 181 applied while a Full Bench of five Judges in Bhaunath Singh v. Kedar Nath Singh, ILR 13 Pat 411 : (AI R 1934 Pat 246 (2) ) (L) again by a majority judgment accepted the contrary view. I have already noticed the view taken by the Bombay and Madras High Courts which is in conflict with the decisions of the Punjab, Allahabad, Calcutta, and Nagpur High Courts. It may be that an application for restitution on reversal of judgment is very similar to an application for execution, but that is I think no reason fo make Article 182 of the Limitation Act applicable to such applications.

It is well settled that the only safe guide in construing the provisions of the Limitation Act is to give strict grammatical meaning to the words used in the statute and in that process equities should not be imported. The scope of Article 182 is limited to execution applications and its scope cannot be erbended by analogy to applications that are not stridly speaking for execution of a decree or order. I am in entire agreement with great respect with the observations made by Fazl Ali J. in ILR 13 Pat 411: (AIR 1934 Pat 246 (2) ) (L).

'On reading these judgments along with those decisions wherein the opposite view has been propounded the conclusion which I have arrived at in my mind is that if I were asked --what should be the law, I would perhaps say that Article 182 should apply to an application under Section 144, but if the question which I have to answer is -- what is the present law on the subject, I would feel constrained to say that under the provisions of law as they stand, Article 181 of the Limitation Act is the only Article which is applicable to an application under Section 144, Civil Procedure Code.'

9. In any case, this view has consistently prevailed in the neighbouring Courts of the Allahabad and Punjab High Courts, and there is no reason for not making it applicable to the erstwhile Pepsu area and territory. For all these reasons, I am of the opinion that an application under Section 144, Civil Procedure Code, is not an application for execution within Article 182 of the Limitation Act but that it is a miscellaneous application. In this view of the matter such an application is governed by the residuary Article 181 of the Limitation Act.

10. This brings me to the second point. The vendee's contention is that the limitation started on 11-6-1949, when the District Judges varied the judgment of the trial Court, while the pre-emptor's case is that it started on 28-4-1951, when the High Court dismissed the appeal and thereby finally reversed the judgment of the trial Court.

11. The third column of Article 181 lays down that limitation shall begin to run from the date 'when the right to apply accrues.' Giving these words the ordinary and natural meaning, it is clear that this right of applying for restitution. accrued to the pre-emptor on the date that the District Judge varied the decree of the trial Court and reduced the pre-emption money by Rs. 500/-. The general principle is well established that once limitation has commenced to run it will continue to do so unless it is stopped by any express statutory provision. This principle has been given statutory recognition in Section 9 of the Limitation Act which lays down that 'where once time has begun to run, no subsequent disability or inability to sue stops it'. These disabilities are laid down in Sections 4 to 25 of the Limitation Act. This principle Is also recognised in Lasa Din v. Mst. Gulab Kunwar, ILR 7 Luck 442: (AIR 1932 PC 207) (M) in which judgment the Privy Council has observed:

'If in the Indian cases the question were: 'When did the mortgagee's cause of action arise' i.e., when did he first become entitled to sue for the relief claimed by his suit -- their Lordships think .....................................'

There is no material difference between the expression 'the right to apply accrued' and the expression 'the cause of action arises', and if anything, the former is more emphatic. Therefore, the crucial date is the first date of the accrual of the right to apply. It has been consistently held in the Lahore, Allahabad and Calcutta High Courts that the right To apply accrues on the date when for the first time a decision is given which entitles a party to apply for restitution: vide Punjab National Bank Ltd. Delhi v. Firm Nanhe Mal Janki Das AIR 1939 Lah 73 (N), ILR 57 All 26: (AIR 1934 All 626) (FB) (G) and ILR 56 Cal 61: (AIR 1928 Cal 646) (FB) (H). This problem, I may mention does not arise in Courts which have held that an application for restitution is an application for execution as under Article 182(2) an order of the appellate Court gives fresh start of limitation.

12. A contention has been raised that even if it be held that limitation starts from the date of the decree or order of the first appellate Court, a new and fresh limitation starts from the date of the order passed by the second appellate Court as the decision of the first appellate Court merges in that of the second appellate Court. The argument is that the decree of the first appellate Court merges in that of the second appellate Court, and, therefore, the right of restitution also accrues afresh from the date of the decree or order of the second appellate Court. In support of this argument reliance has been placed on the observation of Sulaiman C. J. in ILR 57 All 26: (AIR 1934 All 626) (FB) (G). This observation runs:

'It seems to me that it is open to a successful party to apply for restitution after it has been definitely settled by the highest Court of appeal that the first Court's decree was wrong'.

My attention has also been drawn to the passing observation of Fazl All J. in ILR 13 Pat 411: (AIR 1934 Pat 246 (2) ) (FB) (L), wherein he expressed hesitation in holding that although the decree of the first appellate Court merged in that of the second appellate Court, the period of limitation did not start from the date of the latter decision. The learned Judge, however, did not finally decide the point as it was not necessary to do so in view of the fact that the majority view of the Patna High Court expressed in that judgment was that an application for restitution under Section 144, Civil Procedure Code, was governed by Article 182 of the Indian Limitation Act.

13. Now, under Section 9 of the Limitation Act, once limitation has started to run, no subsequent disability or inability can stop it. The party who has succeeded in the first appellate Court is entitled to apply for restitution on the date of that decision. The fact that an appeal has been filed against the decision of the appellate Court, does not to my mind affect the date on which this right to apply for restitution has accrued. It is well settled that an appeal does not operate as a stay of proceedings under a decree appealed from (Order XLI rule 5, Civil Procedure Code). The mere filing of an appeal does not suspend the operation of a decree and is no bar to proceedings being taken thereon except so far as the appellate Court orders otherwise.

Proceedings for restitution cannot be stayed under Order XLI rule 5 Civil Procedure Code, in an appeal against a decree which has reversed the trial Court's decree as such proceedings cannot be considered to be 'proceedings under the decree' within that provision of the law. It follows therefore that the filing of an appeal does not stop running of limitation which had in the present case started on the date of the decision of the first appellate Court on 11-6-1949. Article 181 lays down only one point of time from which limitation starts and no other. Once limitation starts running and there is no subsequent disability or inability, then there is no other point of time from which a fresh limitation can start.

It is true that the decree or order of the second appellate Court or of the first court of appeal finally decides the rights of the parties, but it does not follow that ex necessitate limitation should start from that date even if the provisions of the Limitation Act are in conflict with such a conclusion. Article 182 lays down various points of time from which limitation starts and Article 182(2) says that it will start from the date of the final decree or order of the appellate Court when there has been an appeal, but this provision is not found in Article 181. After ail a claim for restitution cannot be said to arise when the decision of the appellate Court has been confirmed by the final Court of appeal. The mere fact that the party entitled to claim restitution omits to enforce his claim upon the accrual of that right will not keep the limitation suspended.

The decree of the final appellate Court does not under the limitation Act or under any other law give a fresh right of restitution but merely affirms the right which had already accrued Chanda Singh v. Bishen Singh, AIR 1924 Lah 166 (O). This is the view that has been taken by the Lahore, Allahabad and Calcutta High Courts in cases already referred to in the earlier part of this judgment. I am for these reasons of the opinion that the affirmation of the decree by the second or final Court of appeal does not start afresh the period of limitation for enforcing the right of restitution.

14. Finally, it was contended on behalf of the pre-emptors that the observations of the Privy Council in Nagendranath Dey v. Suresh-chandra Dey, ILR 60 Cal 1 : (AIR 1932 PC 165) (P) indicate that the limitation should be held to start afresh on the decision of the final Court of appeal. In that case their Lordships were discussing the provisions contained in Article 182(2). They held that under that Article limitation starts to run afresh from the date of the final decree or order of the appellate Court. In the course of discussion their Lordships observed:

'The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the word is, their Lordships think, the only safe guide. It is at least an intelligible rule that, so long there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which if the final result is against them, may lead to no advantage.'

In this decision their Lordships made it clear that the Limitation Act must be construed strictly according to the language used in the Article. They then proceeded to observe that this provision in Article 182 (2) is just and proper. It cannot be said that by these observations their Lordships of the Privy Council laid down that in all cases limitation should start from the date of decision of the final Court of appeal. If this be so, then it is impossible to hold that article 181 contemplates start of limitation from two points of time when it is expressly limited to the date from which the right to apply accrues.

15. From the above discussion it follows that in the present case the limitation started from 11-6-1949 and did not start from any other date. That being so, the application under Section 144, Civil Procedure Code, made in this case on 11-9-1952, is barred by time.

16. Gurnam Singh J. had referred only the question of limitation to a larger Bench and the whole case has not been referred to us. Having expressed my view on the question of limitation involved the case must now go back to the Hon'ble Judge for its decision.

G.L. Chopra, J.

17. I entirely agree.

K. L. Gosain, J.

18. I agree.


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