Hardayal Hardy, J.
(1) This is a puzzling little case in which I must confess my mind has fluctuated some-what and thereforee although counsel's arguments were heard by me as far back as January 16, 1969, I took time to pronounce judgment. The facts are nto many and are also nto in dispute.
(2) One Ram Nath obtained a money decree against Dalip Singh and in execution of the decree the property in dispute was put to sale by court auction and was purchased by one Babu Ram on 21-4-1953. The sale certificate was issued on 15-6-1953 and about a week later the auction purchaser sold .the property by a registered deed of sale to one Chiranji Lal. The latter applied to the executing court for delivery of possession and succeeded in obtaining possession of the upper floor of the property on 24-11-1955. Thereafter Smt. Bhiko mother of the original judgment-debtor Dalip Singh moved an application before the executing Court under Order 21 rule 100 of the Code of Civil Procedure for possession being restored to her of that portion of the property from Chiranji Lal. She claimed that she had a right of residence in the property till her death and referred to the sale certificate in which her right had been specifically recognised and mentioned. Her application was accepted by the executing court and restora
THEplea was however nto accepted by the learned Additional Senior Subordinate Judge who heard and disposed of the appeal.
(3) Chiranji Lal nevertheless continued to remain in possession of the entire property in spite of dismissal of his suit and appeal; as no action was thereafter taken by Shrimati Bhiko till 1964 to obtain back possession which had been allowed to' her by the executing Court on 7-7-1956. In 1964 she moved an application for execution in the Court of Shri R. K. Singhal, Subordinate Judge Delhi but the same was withdrawn by her on 29-4-1966 for presentation to the proper court. Ultimately on 1-5-1966 she moved another application before Miss S. Mehta, Commercial:
Sub-Judge, Delhi for return of possession as per order dated 7-7-1956. Learned Subordinate Judge directed her to file a certified copy of the plan and also called for the original file. It was later reported by the office of that court that the originnal file had been destroyed. Shrimati Bhiko was thereupon ordered to file an affidavit that the un-certified copy of the plan filed by her was correct. Meanwhile a warrant for restitution of possession was also ordered to be issued.
(4) Chiranji Lal then filed his objections which having been dismissed by the learned Subordinate Judge on 1-12-1967 the order was challenged by him in appeal which too was dismissed by Shri D. R. Khanna, Additional District Judge, Delhi by his order dated 18-7-1968. Chiranji Lal has now filed a second appeal in this court. For facility of reference he will hereafter be described; as appellant while Shrimati Bhiko will be described as respondent.
(5) Before the lower appellate court the maintainability of the appeal was objected to by the respondent and it was argued that the order passed by the court of first instance did nto come within the purview of section 47 Civil Procedure Code or section 144 Civil Procedure Code and as such no appeal was competent. Learned Additional District Judge accepted the contention and held that neither of the two sections was applicable. He however held that although section 144 C.P.C. did nto apply in terms the impugned order had been made in exercise of the inherent powers of the Court under section 151 Civil Procedure Code on grounds analogous to those contemplated by section 151 Civil Procedure Code An appeal was thereforee competent. In support of his view reliance was placed by the learned Judge on two decisions of Calcutta High Court and one decision of Nagpur High Court in Gnanada Sundari Mojumdar v. Chandra Kumar De (1), Maharaja Sasikanta Acharjee v. Jalil Baksha Munshi and others (2) and Mt. Champabai w/o Seth Gopiki.son v. Shree Daulatram Sharma and others (3).
(6) On the question of limitation, the learned Judge up-held the view taken by the first court and held that the application filed by the respondent was one for revival or continuance of the previous proceedings and was thereforee nto barred by time.
(7) When the appeal came up for hearing before me Mr. Gopal Narain counsel for the respondent raised a preliminary objection to the maintainability of the appeal and urged the same grounds as had been raised in the Court below. He submitted that the impugned order could nto be treated as decree as defined in section 2(2) Civil Procedure Code and thereforee no appeal could be filed against it. In this connection he referred me to Dharanidhar Ghose v. Janaki Mathi Mukerjee and others (4), The Madras and Southern Maharatta Railway by its General Manager v. Chengali Sydalli and another (5), Ramkeshwar Prasad and others v. Babu Girja Prasad (6), State of Travancore-Cochin v. Lekhmi Ammal Meenakshi Ammal and others (7).
(8) It however seems to me that none of the cases cited by the learned counsel really met the point that had induced the Court below to hold that the appeal filed before it was competent as the view taken by it had the support of the three Bench decisions mentioned in the earlier part of this order.
(9) Were it nto for the fact that my own inclination lay in the opposite direction I might have over-ruled the objection raised by Mr. Gopal Narain straight-away. I however felt that the point needed further examination and thereforee allowed the appeal to be argued reserving judgment meanwhile on the preliminary objection raised by the learned counsel.
(10) I have since had time to examine a large number of cases and have found overwhelming support for the view I was myself disposed to take.
(11) I find that the High Courts of Calcutta and Nagpur are almost the only courts where the view taken is that where a court acting under section 151 Civil Procedure Code exercises the same jurisdiction which section 144 Civil Procedure Code gives it, the order of restitution made under section 151 Civil Procedure Code is appealable. All other high Courts are almost unanimous in taking the opposite view.
(12) The raison de'etre of the Calcutta and Nagpur decisions is to be found in the following passages from the judgment of Greaves and Mukerji JJ. in Gnanada Sundari Mojumdar's case from Calcutta and from the judgment of Stone C.J. and Digby J. in Champabai's case from Nagpur. Greaves J. (Mukerji J. concurring) observed:-
'ITcertainly seems a curious position that if the Court deals with the matter under S. 144, Civil P.C., an appeal lies whereas if the Court under S. 151 exercises the same jurisdiction which S. 144 gives him, but exercises that jurisdiction under S. 151 because S. 144 is nto strictly applicable, no appeal lies; and the view I take is that if as here the order is made under the provisions of S. 151, but in fact in exercise, by analogy, of the jurisdiction under S. 144 an appeal does lie'.
(13) In the Nagpur case Stone C.J. in a judgment of the Court consisting of himself and Digby J. observed:-
'ITmay readily be conceded that because an order is passed under the inherent powers it does nto necessarily become appealable: 24 N.L.R. 55 and 31 N.L.R. Sup. 72. If however the inherent powers are used to expand a remedy in order to do justice to cover a case nto within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this case S. 144. In such a case even justice demanded that one side should be given a remedy, restitution, as if S. 144 applied so the other side should, as a matter of justice, be allowed the right to appeal that would have existed, had S. 144 really applied instead of its being applied by means of a fiction. Some such reason seems to be involved in those cases where orders for restitution passed under the inherent powers have been held appealable'.
(14) The second Calcutta case: Maharaja Sasikant Acharjee v. Jalil Baksha Munshi and others, merely follows the earlier decision in Gnanada Sundri's In Chamna Bai's case two earlier decisions of the same High Court: Narayan Das Bhagwani & Co. v. Kalyanji Mawaji & Co. and Tatyarao v. Shrikrishna and one other decision of Calcutta High Court: Amirannessa v. Karimannessa in which the same view was taken, have also been referred to.
(15) The foremost exponent of the opposite view is a Full Bench of Madras High Court (Satyanarayana Rao, Viswanatha Sastri and Taghava Rao JJ.) in Sayyed Usman Saheb and others v. Vegisena Sivaramraju and others Before quoting a passage from the judgment of Satyanarayana Rao J., which sets out the case against the competency of the appeal in a language which can hardly be improved, I would like to make clear that it was nto contended before me by the appellant's counsel, as indeed it could nto be contended, that the order of the first Court was made either under section 47 or section 144 C.P.C. Section 47 in terms applies to parties to the original decree or their representatives. The respondent was admittedly nto claiming her rights through her son Dalip Singh, the original judgment-debtor. The application of S. 47 was thereforee clearly excluded. This was also nto a case of the decree of the Court of first instance under which the property was sold, having been varied or reversed in any manner. thereforee section 144 was also nto attracted in any manner. As a result, the impugned order could nto be termed as a decree as defined in section 2(2) of the Code of Civil Procedure. The only provision under which the impugned order could be passed is section 151 Civil Procedure Code and it is on that basis that the appeal was argued on behalf of the appellant before the lower appellate Court as well as in this Court. It was nto contended that the Court passing the impugned order could nto or should nto have acted under section 151 Civil Procedure Code and should have left the respondent to pursue her remedy by means of a suit.
(16) Let me now quote the passage from the judgment to which I have already referred. The learned judge observed:-
'THEquestion thereforee must be considered on the footing that the order of restitution passed by the District Munsif's Court is one which falls under s. 151 Civil P.C. Decisions have recognised inherent powers of Courts to order restitution in cases nto falling under S. 144, Civil P.C. See Rodger v. Comptoir D. Escompte de Paris Palanippa v. Ramanathan and Ratnaji v. Ramkrishnayya A right of appeal should be conferred by a statute or by some authority equivalent to a statute and does nto exist as an inherent right. This proposition is well established by the decisions of the highest tribunal which followed the principle recognised under decisions in England vide Minakshi v. Subramamia and Rangoon Botatoung Co. Ltd. v. The Collector of Rangoon Under the Code, right of appeal is provided by S. 96 from every decree passed by any Court exercising original jurisdiction. Section 104 and O.43, Civil P.C. provide appeals from orders. Section 2(2) defines a 'decree' as including an order rejecting a plaint, orders under S. 47, Civil P.C. and orders under S. 144, Civil P.C. The first part of the definition is confined to a conclusive determination by a court of the rights of the parties with regard to all or any of the matters in controversy in suit. it follows from this definition that a decree may be a conclusive determination of the rights of parties with regard to matters in controversy in suit; it may be an order rejecting a plaint or an order falling under S. 47 or S. 144 Civil P.C. It excludes from its purview appealable orders and also an order of dismissal for default. In order thereforee to confer a right of appeal, an adjudication must be either a 'decree' in the sense defined by the Code or an 'order' which falls under S. 104 or 0 -43 Civil P.C. As an order for refund or restitution under S. 151 Civil P.C. is nto an order within S. 144 and is nto otherwise included either in the definition of the decree or the appealable orders enumerated in S. 104 and O.43 there is no right of appeal against such an order. An application nto being an order in a suit it would nto be a decree; a suit should be instituted by a plaint and nto by an application. So, even if the order determines conclusively the matters in controversy between the parties, as it is nto an order passed in a suit, it won't be a decree within the meaning of the first part of the definition of decree. see Hansraj Gupta v. Official Liquidators of Dehra Dun etc. Co., and Rajagopala Chettiar v. H. R. E. Board Madras F.B.). On a plain reading of the provisions of the Code relating to the appeals thereforee, the order now in dispute is nto appealable.'
(17) The view of Lahore High Court is exemplified by a Bench decision of that Court in Ganesh Datta and another v. Model Town Society Ltd. In that case an order made by the executing Court confirming a sale was set aside and an application purporting to be under sections 151 and 144 Civil Procedure Code was presented by the sons of the deceased judgment-debtor for mesne profits.
(18) The application was allowed by the executing Court in part. Against that order an appeal was filed praying that the amount of mesne profits allowed by the Lower Court be enhanced. A preliminary objection was raised on behalf of the contesting respondents that the order of the lower Court was nto appealable. The Bench consisting of Tek Chand and Abdul Rashid JJ. upheld the objection holding that since section 144 was inapplicable to the facts of the case and the order had been made under section 151 Civil Procedure Code no appeal could lie against it.
(19) In Alfred Zahir v. Siraj-ud-din (18) Abdul Rahman J. no doubt entertained an appeal from an order of restitution made under section 151 Civil Procedure Code in a case where section 144 was nto strictly applicable. An examination of the judgment however shows that no objection was raised to the competency of the appeal nor was the attention of the learned Judge drawn to the Bench decision in Ganesh Datta and Another v. Model Town Society Ltd.
(20) In Patna High Court the view has been more or less uniform. Sukhdeo Dass and others v. Rito Singh is a Bench decision of that Court. In that case the decision of Calcutta High Court in Amirannessa's case was pointedly brought to the notice of the Learned Judges. Learned Judges however observed that if the order made by the executing Court was nto appealable as a decree than it could only be appealable as an order; but order 43 rule 1 Civil Procedure Code . didnto make any provision for an appeal against an order of restitution which was apparantly made under section 151 Civil Procedure Code . It was thereforee held that no appeal lay against the order to the District Judge and a fortiori no second appeal could be filed in the High Court.
(21) The afore-said decision was followed by Rowland J. in Rameshwar Lal Jhunjhunwala v. Ram Charan Parsad Sahu and others where the learned Judge also noticed one other decision of the same High Court in Ram Rattan Prasad v. Banarsi Lal In that case Fazl Ali J. with whom Dhavle J. agreed, observed that an application for restitution following an order setting aside the sale would nto be a matter relating to execution of a decree within the meaning of section 47 Civil Procedure Code He also observed that section 144 could nto be invoked in such a case and that an order for restitution could only be made under section 151 in the exercise of the inherent jurisdiction of the Court. As regards competency of the appeal before the District Judge, it was clearly held that no such appeal was competent but since an appeal had been entertained by the District Judge, it was held that a second appeal to the High Court was competent.
(22) The two cases from Calcutta and the case from Nagpur High Court were cited before a learned single Judge of Patna High Court in a case which was decided on 22-2-57: Ramanandan Pandey and others v. Jagarnath Rai Learned Judge expressed his dissent from the view taken by both the courts and made an express mention of the facts that in the Nagpur case the attention of the learned Judges had been specifically drawn to the decision of Patna High Court in Sukhdeo Dass's case (22), but the learned Judges had nto given any reason for nto following that decision.
(23) In Allahabad High Court the question came up for consideration in The Allahabad Theatres Limited v. Ram Sajiwan Misra before a Bench consisting of Harish Chandra and Sapru It was noticed that there was no decided case of that Court on the point. At page 731 of the Report Harish Chandra J.
(24) A referred to the various decisions from Calcutta, Nagpur and Madras. The Madras decisions are those which were subsequently distinguished or over-ruled by the Full Bench of that Court in Air 1950 Mad 483 to which a reference has already been made by me. Learned Judge expressed his dissent from the view taken in all those rulings and held that an order under section 151 would always remain an order under that section whether or nto it was by its nature analogous to an order which might be passed under some other provision of the Code. Where an order for restitution thereforee did nto strictly come under section 144 but was passed under section 151 no appeal lay against such order. Sapru J. took a contrary view and preferred to follow the view taken in Champabai's case from Nagpur. Learned Judge also referred to a later decision of the same Court in Sheonandanlal Gurudayal Shrivastava v. Gopal Babji Nafde and others (24). It is a judgment of Puranik J. of that Court and merely follows the earlier Bench decision of that Court in Champabai's case.
(25) In Kaku Singh and others v. Gobind Singh and others Grover J. (as he then was) had to consider a similar question. In the course of arguments the attention of the learned Judge was drawn to the decision in Gnanada Sundari Mojumdar's case . His Lordship declined to follow that decision and instead followed a decision of Lahore High Court by Abdul Rashid J. in Mam Chand v. Ah Mohammed and another where the learned Judge without deciding the point had treated the memorandum of second appeal as a petition for revision.
(26) The view of Calcutta High Court was also nto followed by a Division Bench of Chief Court of Oudh in Brij Mohan Singh v. Rameshar Singh and others nor by the High Court of Bombay where Gajendragadhkar J. (as he then was) on an exhaustive discussion of the case-law, held in Mangilal Kajodimal v. Shankar Shravan Nikarn that no appeal lay from an order of restitution passed under section 151 Civil Procedure Code of the Code of Civil Procedure and nto falling within the purview of section 144 inasmuch as such an order is nto a decree as defined under section 2(2) of the Code.
(27) It may be mentioned here that even in Calcutta High Court, Lodge J. was doubtful about the correctness of the view taken in that Court. In Gopal Laskar v. Harihar Mukherjee and others the learned Judge observed:
'If the matter were rest Integra, I should be inclined to hold that no appeal lay from an order passed on an application under section 151 Civil P.C. but in my opinion I am bound by the decisions of this Court. The decision of this Court which are binding on me are all to the effect that an appeal does lie under the circumstances such as those with which I am now concerned.'
(28) On close and careful consideration of the various authorities mentioned above, I prefer to follow the view taken by the learned Judges of the Madras High Court in the Full Bench case 1950 Mad 463 mentioned above and hold that the learned Addl. District Judge had no jurisdiction to entertain the appeal filed before him and since the first appeal was nto competent the second appeal in this Court is also nto maintainable.
(29) The question however still remains whether on the facts of this case the memorandum of appeal should be treated as a memorandum of revision. I have closely examined the reasons which have weighed with the courts below in holding that the application filed by the respondent was merely a revival and continuance of her earlier application. The respondent had obtained an order of restitution in her favor on 7-7-1956. Thereafter her application was ordered to be consigned to record and all further action on the application was hindered by the suit followed by an appeal filed by the appellant. In such circumstances her subsequent application had no other object than to continue or revive the previous proceedings.
(30) The Court of first instance has held that no question of limitation arose in such a case. Although the appeal filed by the appellant before the lower appellate Court has been held by me to be incompetent, even that Court has held that the procedure of getting rid of applications by such orders as 'struck off', 'lodged', 'recorded', 'closed', or 'consigned to record', is something un-known to law. It is the duty of the Court to dispose of an application by making a valid or effective order in one of the ways known to law and nto by using such dubious expressions. I am in agreement with this view. The result is that there is no error of jurisdiction in the order made by the learned Subordinate Judge and as such even if the memorandum of appeal were to be treated as a revision the appellant would nto get any relief from this Court. The appeal is thereforee dismissed, but in the circumstances of the case I do nto propose to-make any order as to costs.