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Beeravu and ors. Vs. Kathiymma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 293 of 1972
Judge
Reported inAIR1973Ker226
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151; Limitation Act, 1963 - Schedule - Articles 119, 137, 158, 178 and 181
AppellantBeeravu and ors.
RespondentKathiymma and ors.
Appellant Advocate T.R. Govinda Wariyar and; K. Ramakumar, Advs.
Respondent Advocate P.K. Shamsuddin, Adv.
DispositionPetition allowed
Cases ReferredPadam Sen v. The State of Uttar Pradesh
Excerpt:
limitation - time barred application - sections 144 and 151 of code of civil procedure, 1908 and articles 119, 137, 158, 178 and 181 of schedule to limitation act, 1963 - petitioner application for invoking inherent powers of court to grant restitution - respondent challenged said application on ground of limitation - application under section 151 would not be applicable to article 181 - article 137 will have no application to case of motion made by party seeking to invoke inherent jurisdiction of court - petition allowed. - - in all these the plaintiff was unsuccessful. though first defendant set up independent title in himself under the assignment from syed ammad he possibly wanted to protect his interests even if such assignment was found to be bad and therefore possibly to avail.....orderp. subramonian poti, j. 1. this revision arises from proceedings for restitution. deceased first defendant is said to have deposited in court certain amounts when the suit was pending for trial. this is said to have been withdrawn by the deceased plaintiff-the suit was for recovery of possession with arrears of rent. the defendant disputed the title of the plaintiff. ultimately plaintiff's title was found against and the suit was dismissed. the matter was taken up in appeal and further appeal to this court. in all these the plaintiff was unsuccessful. the plaintiff had claimed to be the lessor and had alleged that the first defendant was holding the property under a lease. though the first defendant denied this he had made certain deposits of rent to avail himself of the benefit of.....
Judgment:
ORDER

P. Subramonian Poti, J.

1. This revision arises from proceedings for restitution. Deceased first defendant is said to have deposited in Court certain amounts when the suit was pending for trial. This is said to have been withdrawn by the deceased plaintiff-The suit was for recovery of possession with arrears of rent. The defendant disputed the title of the plaintiff. Ultimately plaintiff's title was found against and the suit was dismissed. The matter was taken up in appeal and further appeal to this Court. In all these the plaintiff was unsuccessful. The plaintiff had claimed to be the lessor and had alleged that the first defendant was holding the property under a lease. Though the first defendant denied this he had made certain deposits of rent to avail himself of the benefit of the provisions of the Madras Act 17 of 1946 for stay of suit, a part of the amount deposited is seen to have been withdrawn by the deceased plaintiff during the trial. The High Court finally disposed of the suit on 11-2-1966 and thereafter application for recovery of this amount from the legal representatives of the plaintiff was filed by the legal representatives of the first defendant. That application was so filed on 5-2-1969 within three years of the final decision by the High Court.

The legal representatives of the plaintiff, inter alia, contended that thisapplication was barred by limitation. The Court of first instance denied relief on the ground that the defendants could have sued the plaintiff for reimbursement of the amount and in the circumstances the Court will not grant restitution in exercise of the inherent powers. It also found that the petitioners have not proved that they have deposited the amounts shown in the petition and that the amount has been withdrawn by the plaintiff. The question of limitation was not considered by the Court. The Court below, before which an appeal was filed, found that, the party having invoked the inherent jurisdiction of the Court, no appeal lay to that Court The legal representatives of the deceased defendant, whom I shall hereinafter refer to as the petitioners, have filed this revision against the order passed by the Munsiff, as they accept the finding of the Court below that the appeal to that Court was not maintainable. The delay in filing the revision has already been excused.

2. That the motion made by thepetitioners was not for restitution under Section 144 of the Code of Civil Procedure admits of no doubt. That section will have application only in cases where a decree or order is varied or reversed and as a consequence parties have to be restored to the position occupied by them earlier. It is not consequent to any decree or order that present claim has arisen. It is not a case of the decree of the trial Court or appellate Court being varied or reversed- Deposit was made by the first defendant so that he may avail himself of the benefit of the stay of trial of the suit in terms of Madras Tenants and Ryots Protection Act 17 of 1946. The Act provides for such deposit for payment to the landlord. The suit property originally belonged to one Syed Ammad who assigned his properties to his wife, the third defendant in the suit-In spite of such assignment in favour of his wife, he assigned the properties later to the first defendant who took it on the assumption that the assignment in favour of the wife did not come into operation. But on the basis of the assignment taken by the wife she assigned it to the plaintiff in the suit.

He contended that the first defendant was holding under a lease from the third defendant and sued to recover. Though first defendant set up independent title in himself under the assignment from Syed Ammad he possibly wanted to protect his interests even if such assignment was found to be bad and therefore possibly to avail of the benefit of the lease which had been set up by the plaintiff in the plaint he deposited two years' rent as provided under the Act.

It was this that was drawn by the plaintiff during the pendency of the suit. The decree of the Court did not make any provision for return of the amount so drawn and that is why the Court had to be moved, after decree, for recovery of that amount from the legal representatives of the plaintiff. It is not contended now that Section 144 of the Code of Civil Procedure would apply in these circumstances. On the other hand, the petitioners are invoking the inherent powers of the Court to grant restitution.

3. Very elaborate arguments were heard in this revision and very many interesting questions were raised. According to counsel for the respondents, for a variety of reasons there is no scope for invoking the inherent power of the Court. Even if this is a case in which the Court could exercise inherent power, according to counsel for the respondents, any application for restitution should have been made within the period provided in Article 137 of the Limitation Act. 1963 corresponding to Article 181 of the Indian Limitation Act. 1908. Though the application has been made within three years of the decision of the High Court that is not the decision which gave the cause of action to the petitioners. They should have come in, if at all, within three years of the date of the trial Court decree dismissing the suit. If that be not the case, the application would be barred by limitation. This is the main defence to the motion made by the petitioners by way of restitution. But according to Sri. Govinda Wariyar appearing for the petitioners, the question of applying Article 181 or 137 would not arise at all.

Counsel would 'Contend that whenever inherent powers are exercised by a Court that would be asking the Court to exercise powers outside the provisions of the Code of Civil Procedure and it is only to applications under the Code that Article 181 of the Indian Limitation Act would apply. He would further urge that even under the Limitation Act, 1963 the position was the same though possibly it could be argued that the legislature intended otherwise. He has a larger contention concerning the scope of Section 151 of the Code of Civil Procedure. According to him there is no conferment of anyinherent power on the Court under the Code but it is only left unaffected and the power which is inherent is a power which is to be exercised to do justice between the parties. That is not a power which is coupled with a right in the party to seek an adjudication or relief. Hence, according to counsel there is no scope for any application and if any application is filed it is only just to bring the matter to the notice of the Court so that the Courtmay feel that It is a fit case where the Court could act. If it so acts it is not as if on the application. If that be the case, Article 181 would have no application at all or in other words any motion made to a Court seeking to invoke its inherent powers would not be limited by a period of limitation prescribed under the Limitation Act.

4. Section 151 of the Code of Civil Procedure saves the inherent power of the Court. It says-

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

It is not as if the legislature confers a power on the Courts by Section 151. It is not that any limit is prescribed to that power. It assumes the existence of power in every Court to act in such a way as may be necessary to meet the ends of justice. It indicates such existence of the power in Courts and possibly by way of explanation says that none of the provisions of the Code is intended in any way to limit or restrict that power.

5. The mere fact that there is power in the Court does not necessarily mean that in every instance that power should be exercised. It is to be exercised only in rare and exceptional cases where the Court finds that the established procedure may not be sufficient to give relief- Where the Court thinks that some wrong has been done and that has to be corrected and the provisions in the Code may not meet the situation, inherent powers may be exercised. It cannot be used in such a manner as to render the provisions of the Code nugatory by applying it to all cases covered by the Code- That is why it is said that the exercise of the power is discretionary. The court always considers whether, in the interests of justice, it is necessary to invoke its power. The court must bear in mind that it is a power to be exercised only when there are compelling circumstances to do so.

6. It may be that the court itself has done a wrong. Such may be cases where,as for instance, the court pays over money belonging to one party to another. In such cases the wrong must certainly be set right. There may be cases where a wrong is caused to a party not by the court but by the process of court. Though the court itself may not have done any wrong to the party, interests of justice require the court to set right the wrong caused because the court would like to give relief againstabuse of its own process. There may be cases not covered by the situations mentioned, but where justice requires that the court should interfere as for example issue of injunction in cases not covered by Order XXXIX of the Code of Civil Procedure. The element of compulsion on the Court to exercise its discretion may vary in these different categories of cases. But there is essentially a duty in a Court to exercise inherent power and it is that duty which the Court will exercise if the circumstances of the case require it.

7. Law cannot make express provisions to cover all situations and all inconveniences. That is why the recognition of inherent power in a Court is necessary if the ultimate object of administration of justice in Courts is to meet out justice between man and man.

8. I have prefaced the consideration of the question arising in this case with these remarks because it would presently be evident that these have relevance to the question before me. I think that though Section 144 of the Code of Civil Procedure may not. in terms, apply to the restitution sought by the petitioners, the Court can, in exercise of its inherent power, give relief to the petitioners if otherwise the petition could be taken note of. That is. subject to objections as to sustainability and limitation. It is because the law as it then stood required a deposit to be made in Court to avail of the benefit of that provision that such deposit was made and that deposit being for payment to tha plaintiff, he withdrew the money. The decree passed by the Court could very well have provided for recovery by tha first defendant. But. of course, that is not being done in many a case. The parties have therefore to move the Court and seek relief as has been done here. The plaintiff has been unduly enriched and that has been by the process of Court. That is where the Court will exercise its inherent power to put the parties to their original position if there is no reason for denying the benefit of exercise of such power. Hence I hold that the application could be treated as a motion to the Court to seek to invoke its inherent power.

9. Now I will come to the question of limitation. The application was filed long after the Limitation Act. 1963 came into force. But, all the same, I may have to consider the scope of Article 181 of the Indian Limitation Act. 1908 which corresponds to Article 137 of the Limitation Act, 1963 since, as I will presently show, the history of the provision is of some relevance in the context. Article 181 was the residuary article in the repealed enactment. It applied tocases to which no other article applied. That none of the specific articles in the schedule to the Limitation Act applied to a case of restitution under the inherent power of the Court is not disputed. The only question is whether Article 181 will have application. If Article 181 has no application, then there is no question oflimitation. Of course, whether the Court should interfere because of lapse of considerable time is then a matter relevant to the exercise of the Court's discretionary power. But that is another question.

10. Article 181 of the Indian Limitation Act, 1908 read-

'Description of application.

Period of limitation.

Time from which period begins to run.

181.

Applicationsfor which no period of limitation is provided elsewhere in this schedule orby section 48 of the Code of Civil Procedure, 1908 (V of 1908).

Three years.

When the right to applyaccrues.'

Article 137 of the LimitationAct, 1963 reads--

'Description of application.

Period of limitation-

Time from which period begins to run.

137.

Any other application for whichno period of limitation is provided elsewhere in this Division

Three years.

When the right to apply accrues.'

It may be noticed here that there is no material difference between the two articles.

11. Though In Article 181 there is no limitation of its application to applications under the Code of Civil Procedure that was read into it by decisions of Courts. That was because the other articles of the Limitation Act referred only to applications under the Code of Civil Procedure and applying the rule of ejusdem generis this article was also considered as applicable only to applications under the Code the words 'under the Code' being virtually read into the first column of that article. Of course, there was difference of opinion among the High Courts on this question. But the view which accepted a limitation in the article was approved by the Supreme Court as I would presently show. But a further question arose when Arts. 158 and 178 were substituted in the Limitation Act as it then stood, by Amendment Act 10 of 1940. That referred to applications under the Arbitration Act and when these were incorporated it was no longer open to be contended that the schedule to the Limitation Act dealt only with applications under the Code. Therefore again difference of opinion arose among the High Courts in India as to the scope of Article 181.

I need not go into this in view of the decision in Sha Mulchand & Co. v. Jawahar Mills Ltd.. (AIR 1953 SC 98). The Supreme Court held that the article has been understood for a fairly long time as one which referred to applications under the Code of Civil Procedure and the mere fact that two articles were substituted so as to bring in applications under the Arbitration Act also cannot have the effect of changing the meaning of Article 181. In that view it was evident that the words 'under the Code' was to be read into Article 181 notwithstand-ing that, by reason of the Amendment, some of the articles related to applications other than those under the Code. This decision of the Supreme Court was referred to and followed in subsequent decisions of that Court. I need refer only to the decisions in Bombay Gas Co. v. Gopal Bhiva, AIR 1964 SC 752 and Pravita Bose v. Kumar Rupendra Deb Raikat. (AIR 1965 SC 540).

12. I am referring to this aspect because the case of the petitioners is that any person invoking the exercise of the inherent powers of the Court is not moving an application under the Code and if it is an application de hors the provisions of the Code. Article 181 of the 1908 Code will have no application with the consequence that there will be no period of limitation for such application, This requires the consideration of the question whether the application such as the one filed by the petitioners here is an application under the Code. It is not unusual to see applications described as applications under Section 151 of the Code.

A casual study of Section 151 of the Code is sufficient to show that, strictly speaking, no application is contemplated under Section 151 of the Code. That is because no power is conferred on the Court under that Section. It saves existing power. Even such saving appears to be unnecessary because so long as the Code does not limit the inherent power it would automatically remain and it is only by abundant caution that the provision is made that the inherent power would not be affected. Therefore, the source of the power must be traced not to the Code but to the Court itself, to its inherent character. That is sufficient to find that the application is not one under the Code which would, in turn, mean that Article 181 would have no application when an application is made invoking the inherent powers of the CourtThis aspect of the question had engaged the attention of the Division Bench of Calcutta High Court in Annada Pra-sad v. Sushil Kumar. (AIR 1942 Cal 390). Sen J.. considered the scope of Section 151 of the Code in that case in dealing with the question of applicability of Article 181 of the Limitation Act. It was contended in that case that when the legal representatives of the deceased decree-holder applied for substitution they were making an application under Section 151 of the Code and that application was therefore governed by Article 181 of the Limitation Act. Dealing with this, the learned Judge said-

'In my opinion, this view has arisen owing to the loose language which is sometimes employed in describing application as being under one section or another. Section 151 does not deal with any application nor does it prescribe the procedure for any application; it is a clause whereby the inherent power which is in the Court to act ex debito justitiae. is recognised and left unfettered by the Code. This power is independent of the Code. An application invoking this power is one which is not made under any provisions of the Code and therefore it is not governed by Article 181 or any other Article of the Limitation Act. The Court will exercise its inherent powers if it considers that justice requires its exercise and if it is satisfied that there are no such laches on the part of the applicant which would disentitle him to relief.'

The same view has been expressed in a recent Division Bench of the Madras High Court in Gopalakrishna Naidu v. State, (AIR 1971 Mad 463). Speaking for the Division Bench, Veeraswami, C. J., said-

'But the question is whether an application invoking the inherent power of the Court under Section 151 of the Civil Procedure Code, for payment out is governed by Article 18l of the Limitation Act, 1908. In terms. Section 151 of the Code does not confer on the Court any power as such. It merely declares the inherent power of the Court which undoubtedly exists and the power is not limited or affected by anything in the Code in order to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of Court. It is well established by now that an application invoking such inherent power is not one made under the Civil Procedure Code. AIR 1953 SC 98 though is one of an application under Section 38 of the Companies Act and not one under the Code, the principle deducible from it is that Article 181 of the Limitation Act would be inapplicable to any application which is not made underthe Code. AIR 1964 SC 752 related to an application made under Section 33-C(2) of the Industrial Disputes Act. and here again the principle was applied that because it was not an application under the Code, therefore. Article 181 of the Limitation Act would not be attracted. It is true that the application in this case was made under Section 151 of the Code. Even so, it is not an application under the Code. This has been held by the Supreme Court in Manohar Lal v Seth Hiralal, AIR 1962 SC 527. It observed I 'These observations have no bearing on the question of the Court exercising its inherent powers under Section 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it'.'

It is for this reason AIR 1942 Cal 390 held that to an application under Section 151 of the Code would not be applicable Article 181 of the Limitation Act. This view has been followed in Bhuyan Shyamsunder v. Ch. Nilkanth Das, AIR 1956 Orissa 165 and Fooranchand v. Komalchand. AIR 1962 Madh Pra 64. In the last of these cases, the earlier decisions were noticed and it was held:

'Section 151 does not deal with any application nor does it lay down procedure for any application. It is a provision recognising the inherent power of the Court to act ex debito justitiae. An application for invoking this power is not one which a party is required to make under any provision of the Code for setting in motion any machinery of the Court. Therefore, it is not governed by Article 181 or Article 163 or any other Article of the Limitation Act.' We find ourselves in entire agreement with this view'.

I need not refer to the cases which have already been noticed by the Madras High Court as supporting the view taken by it.

13. I am aware that there are some decisions which have applied Article 181 to applications seeking to invoke the inherent jurisdiction of the Court In those cases there is only an assumption and the question has not been considered or discussed. The relevant question would be whether an application by way of moving the Court to exercise its inherent power is one under the Code.Assumptions made that Article 181 being the residuary Article would automatically apply would be of no assistance in resolving the question before me. I am referring only to two decisions to illustrate this, namely, Gopal Laskar v. Harihar Mukherjee, (AIR 1948 Cal 37) and Suryarao v. Chalamayya, (AIR 1947 Mad 339). in neither of which has the question been considered.

14. The question therefore would have been answered in favour of the petitioners had the matter arisen for decision under the Limitation Act. 1908. But it is said that the new Act makes ell the difference. It is true that the terms of Article 137 is materially identical with the repealed corresponding article. But to some other provisions of the Limitation Act. 1963 my attention has been drawn. Article 119 in the Limitation Act. 1963 corresponds to Articles 158 and 178 of the repealed Act Besides that article dealing with the applications under the Arbitration Act. 1940, there is a new Article 131 which prescribes a period of limitation even for an application for revision under the Code of Criminal Procedure. It is said that this necessitates a reconsideration of the view taken earlier. That is because, while, earlier, it was only the application under the Arbitration Act other than that under the Code of Civil Procedure that found a place in the schedule to the Limitation Act, under the law as it stands now, even an application under the provisions of the Code of Criminal Procedure finds a place in it This argument may easily be repelled by the same logic as appealed to their Lordships of the Supreme Court in (AIR 1953 SC 98). The Supreme Court said in that decision thus:

'It does not appear to us quite convincing, without further argument, that the mere amendment of Articles 158 and 178 can 'ipso facto' alter the meaning which, as a result of a long series of iudicial decisions of the different High Courts in India, came to be attached to the language used in Article 181. This long catena of decisions may well be said to have, as it were, added the words 'under the Code' in the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If. however, as a result of judicial construction, those words have come to be read into the first column as if these words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of Article 181 on the sole and simpleground that after the amendment the reason on which the old construction was founded is no longer available.'

The mere fact that one more Article is incorporated does not affect this logic. Therefore, I think it cannot be said that the Article has to be read in a different, manner due to this circumstance.

15. But there is another contention which has been urged and which according to me is substantial. New terms had been incorporated in the Limitation Act. 1963 in the definition section. I am referring to Sections 2 (a) and 2 (b). Section 2 (a) defines the term 'applicant' and that includes a petitioner and Section 2 (b) defines the term 'application' and that includes a petition-Apparently this may appear to be innocuous because not much of a distinction is usually maintained between an application and 9 petition. Legal dictionaries indicate this. Very often these are used as synonymous. But there is a purpose for the inclusion of 'petition' within the meaning of the term 'application', and that purpose is evident from the recommendation of the Law Commission of India in its third report (Limitation Act, 1908). At page 5 of the printed official report, the Law Commission deals with this matter and that is as follows:

'We recommend that a new definition of the word 'application' so as to include any petition original or otherwise, should be added. The object is to provide a period of limitation for original petitions and applications under special laws as there is no such provision now. Consequential alterations in the definition of the word 'applicant' should also be made'.

Though the Law Commission suggested 'Application' to be defined as including 'petitions, original or otherwise' the words 'original or otherwise' are not in the definition. But that may not be material. It is evident that the purpose of incorporation of the definition of the term 'application' is to bring within the purview of Article 181 not only applications under the Code of Civil Procedure but all applications under other special Laws. Counsel for the petitioners would urge that even then it would only be applications under other laws that would come within the scope of Article 181 and not applications made otherwise than under the special laws and also otherwise than under the Code of Civil Procedure. I do not think that that would be the effect.

In Article 181 as it stood words of limitation were read into because of the context of that Article. These words of limitation were 'under the Code of Civil Procedure'. If, by reason of reading thecorresponding Article 137 along with the definition of the term 'application', there is no scope to read into the Article any restriction or limitation, that is the end of the matter. The plain meaning of that Article will have to be applied and that is without the limitation 'under the Code of Civil Procedure'. That would mean that it will apply to all applications which are not otherwise expressly provided for in the other Articles of the Limitation Act. Therefore, according to me. taking the scope of the change made in the new enactment Article 181will have to be read in a more comprehensive manner to include all applications without the limitation of applicationsunder the Civil Procedure Code'. More lor less the same view has been taken by the Calcutta High Court in R. K. Kajaria v. C. Engineering (India) Ltd.. (AIR 1972 Cal. 381).

16. Of course, if the matter is to rest here, I will have to say that Article 137 as it stands would cover all applications and therefore the application in the present case is also governed by that article. In that event the period of limitation would be three years from the date when the right to apply accrues. Of course, on that again there is controversy. According to the petitioners it 'would be only the date of final decision that would give them a right to apply while according to the respondents in the revision petition the decision of the trial court would necessarily give rise to it I think there is no scope for any cpntro-versy on this in view of the decision of this Court in Vasudevan v. Choyikutty (1964 Ker. L. T. 693). Though an attempt has been made to canvass the correctness of this decision and further to contend that the view taken earlier by Mathew J. which has been overruled by the Division Bench of this Court is correct. I respectully agree with the decision of the Division Bench. When the cause of action arises under a decree of the trial Court the mere fact that an appeal is filed or is proposed to be filed will not postpone such cause of action.

It is true that the decree passed by a Court is under peril when there is an appeal as it is liable to be reversed or modified- But as the law stands to-day, in our country a decree is operative by its own force even though there is an appeal and until the decree is vacated in appeal the consequences of the decree would flow. That is not held in suspense by the mere fact of filing of the appeal. It does not become inoperative simply because there is a danger or peril to the decree, the peril that it may be vacated by the appellate Court. Therefore, the cause of action does accrue in regard tothe decree when the decree is passed. The fact that subsequent decrees have been passed confirming the earlier decree makes no difference. To consider it otherwise would yield to anomalous results. For instance, when a decree passed by a Court is intended to be appealed against end for that purpose a copy application is made will the decree cease to be operative? If so. what will happen if the party never files an appeal When will the cause of action then revive Could it be said that the cause of action would arise not on the passing of the decree, hut on the expiry of the time for filing an appeal That again cannot be determined as it would depend upon the time taken for obtaining a copy of the decree and judgment which must vary from case to case. That may vary from party to party in the same case.

17. Apart from the question of consequences it appears to me clear that there is no scope for doubting the correctness of the decision of the Court that the right of the successful party would accrue when the first decree is passed which entitles him to seek relief. Therefore, if Article 137 would apply then I would have no hesitation in saying that the application filed by the petitioners would have been barred by limitation.

18. Sri Govinda Wariyar. counsel for the petitioners, would attempt tomeet this situation by reference to the ambit and scope of the inherent power of Court. According to him that power is one which every Court has a duty to exercise. It is true that the party may remind the Court that it should so exercise it. True that the degree of compulsion on the Court may vary depending on the circumstances. As I have pointed out earlier, the duty may be very heavy when the Court is in the wrong and very little where it is not so. But the Court acts not because any party has a right to move the Court to get relief. If the party has a right he can compel the Court to act. If he is only informing the Court that some wrong has been done and leaving it to the Court, in spite of the fact that a motion is made by way of application that is not an application within the meaning of Article 137 to the Schedule to the Limitation Act. By long established practice parties have been moving the Court paying court-fees on the application. But essentially that is not an application in the sense in which! it is understood technically.

19. In (AIR 1962 SC 527) the Supreme Court was concerned with a case where the Court was moved for an injunction to stay the trial of a suit pending in another Court. Though this was by an application which would not fallwithin the scope of Order 39 of the Code the Court considered whether the motion could be considered as one under the inherent power of the Court. There was difference of opinion between the High Courts on this point and the Supreme Court, noticing the different views, agreed with the view that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction. The Court further said that it is well settled that the provisions of the Code are not exhaustive for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Baghubar Dayal. J.. said-

'No party' has a right to insist on Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so'.

It referred to the earlier decision of the same Court in Padam Sen v. The State of Uttar Pradesh, (1961) 1 SCR 884 = (AIR 1961 SC 218) and approved the following passage in that decision:

'The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it, These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such order which would affect such rights of a party Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure'.

The learned Judge wound up his discussion as follows:

'The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

Further, when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code'.

I think that it may well be said that the Court is acting on its own whenever It Is acting by virtue of its inherent powers. Normally a Court can come to notice the facts only by its being brought to itsnotice and therefore it is impossible normally to conceive cases where the Court acts without motion though it could act suo motu. That it has acted on motion by a party does not make it any the less a suo motu action if in law it is not necessary that the Court should be so moved for taking action. Therefore if, irrespective of any motion made to the Court, a Court could act. the fact that such motion has been made does not render the order passed one on an application or a motion taken on an application.

20. It appears to me that by its very nature the inherent power is one which should be untrammelled, a power which has no limitations excepting those a Court chooses to impose on itself. It will take into account all considerations such as the question of delay. It is necessary to confer such power on Courts, power which is unrestricted so that in appropriate cases Court may be able to remove the evil and do justice Hence I think I should hold that the scope of Article 137 is limited to applications other than that seeking to invoke the powers of the Court, or to put it in other words, that applications to the Court asking the Court to exercise inherent powers is not really an application in the sense it is not one which falls within the scope of Article 137 of the Limitation Act, 1963.

21. There is yet another aspect which seems to strengthen what I have said here. The third column in the schedule to the Limitation Act specifies the commencement of the periods of limitation and in regard to Article 137 the period of limitation commences when the right to apply accrues. If there is no right accruing at all, there is no question of the commencement of period of limitation. Could it be said that there is a right to apply to invoke the inherent jurisdiction of a Court The duty of the Court does not confer a corresponding right upon the litigant. It is an inherent duty in the Court and a duty which is not coupled with the right in any one to enforce it. If no right accrues to a party and no party could, as of right, move the Court for exercise of inherent power, then Article 181 would be inapplicable to such a case.

22. For the reasons stated. I am of the view that Article 137 will have no application to a case of a motion made by a party seeking to invoke the inherent jurisdiction of the Court as has been done here. Hence there is no limitation in the case before me.

23. Of course, there remains to be considered whether the inherent jurisdiction of the Court need be invoked in this case. It is not disputed that if the ap-plication had been one under Section 144 of the Code of Civil Procedure there would be no limitation. The Supreme Court held that an application for restitution under that section is one for execution. The starting point under Article 182 would be the date of the decree in appeal when there is one. In this case It would be that of the High Court and that would mean that if this application had been under Section 144 of the Code itself the petition would have been in time. This may be relevant in considering whether the application is belated. That the money due to the petitioners have been drawn by the plaintiff is evident and that it has been through the Court and by employment of its process is also not in dispute. It would only be proper that the Court allows recovery of that amount from the legal representatives of the plaintiff. Since it is the legal representatives who have been sought to be made answerable, their liability will be limited to that of the value of the assets received by them from the original plaintiff.

24. The Courts below were in error In thinking that evidence ought to have been adduced to show that deposits have been made end deposits have been withdrawn by the plaintiff. It is a matter evidenced by the records of Court and the Court should have taken care to verify the records. Before this Court a statement has been filed by the petitioners showing the total amount deposited and the total amount withdrawn. Balance in deposit is also shown in the statement. This statement will be forwarded to the Court of first instance, which will take note of this. Balance, if any. will be recovered by the petitioners with six per cent interest on the amount paid from the date of withdrawal by the plaintiff subject to what I have said about the extent of the liability of the legal representatives of the plaintiff.

In the result, the Civil Revision Petition is allowed as above. Parties are directed to suffer costs.


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