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Panchapakesa Aiyar Vs. Natesa Pathar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in95Ind.Cas.587; (1926)51MLJ161
AppellantPanchapakesa Aiyar
RespondentNatesa Pathar
Cases Referred and Hamidalli v. Ahmedali I.L.R.
Excerpt:
- - i think in a case like the present the court must proceed upon some general principle in interpreting the phrase 'the court of first instance 'which would apply even to cases where the court of first instance has been abolished and must apply such a general principle also to cases where the court of first instance has ceased to have jurisdiction. but the trend of authority is too strong against it......of the lower courts has stated the facts correctly. the court of first instance, the principal district munsif's court of tiruvalur, had decreed the plaintiff's (appellant's) suit. on first appeal the second defendant (respondent here) was directed to pay into the first court rs. 750 as security for mesne profits. the money was paid into court on 2nd october, 1917 and the plaintiff drew it out on nth november, 1918. on second appeal in the high court the plaintiff's suit was dismissed on 1st september, 1919. on 16th august, 1922 the respondent put in an application for restitution in the court of the principal district munsif of tiruvalur, the court which had passed the decree. now in june, 1922 the court of the additional district munsif of tiruvalur which had hitherto no.....
Judgment:

Wallace, J.

1. This appeal relates to an application for restitution under Section 144, Civil Procedure Code, in the following circumstances. Neither of the Lower Courts has stated the facts correctly. The Court of first instance, the Principal District Munsif's Court of Tiruvalur, had decreed the plaintiff's (appellant's) suit. On first appeal the second defendant (respondent here) was directed to pay into the first Court Rs. 750 as security for mesne profits. The money was paid into Court on 2nd October, 1917 and the plaintiff drew it out on nth November, 1918. On second appeal in the High Court the plaintiff's suit was dismissed on 1st September, 1919. On 16th August, 1922 the respondent put in an application for restitution in the Court of the Principal District Munsif of Tiruvalur, the Court which had passed the decree. Now in June, 1922 the Court of the Additional District Munsif of Tiruvalur which had hitherto no independent territorial jurisdiction was given such jurisdiction over a locality including the locality of the present cause of action. The Principal District Munsif holding that he had no jurisdiction to entertain the application transmitted it to the Additional District Munsif's Court. That Court held that the Principal District Munsif had no jurisdiction to order such a transfer and directed a fresh application to be put in before him. This was done on 27th September, 1922. On 1st January, 1923 this Additional. District Munsif's Court became the Court of the District Munsif of Nannilam.

2. The appellant contended in the 1st Court that the District Munsif's Court of Nannilam had no jurisdiction. That was overruled and the application for restitution was allowed. He appealed to the District Court of East Tanjore, apparently giving up the contention that the District Munsif's Court of Nannilam had no jurisdiction, but contending that the application was barred by limitation. The District Judge held against him and dismissed his appeal and he now appeals here.

3. The two points urged here are, that the District Munsif's Court of Nannilam had no jurisdiction, the contention however being on a new argument, and that the application is out of time. The appellant's contention is that Section 144 directs that such application must be put in in the Court of first instance, and points to the difference in language between this section and the old Section 583 where the phrase used was ' the Court which passed the decree. ' He contends that, since the Court of first instance was the Principal District Munsif's Court Avhich is still in existence, that was the proper Court to which the application should be put in. The Code has not defined for the purpose of Section 144 what is ' the Court of first instance ' when the 'Court of first instance' has lost territorial jurisdiction. Under the old Code there was no such difficulty, since the phrase used ' the Court which passed the decree ' was defined by Section 649 (present Section 37). The reason for the change of language is not obvious, and it will certainly result in technical difficulties, for example, in a case where the Court which actually passed the decree has been abolished. Section 150, Civil Procedure Code, would not apply in terms to such a case. I think in a case like the present the Court must proceed upon some general principle in interpreting the phrase ' the Court of first instance ' which would apply even to cases where the Court of first instance has been abolished and must apply such a general principle also to cases where the Court of first instance has ceased to have jurisdiction. I think it clear that the principle laid down in Section 37(b) must be followed. On some such principle the ruling in Lakshmana Goun-dan v. Subramania Aiyar (1920) 13 L.W. 67 proceeds.

4. The appellant further argues that Section 37(b) cannot be called in aid because that section only applies to cases of applications for execution, and that an application for restitution is not an application in execution. He admits that the balance of authority in this Court is against him [see Venkayya v. Raghavacharlu 8 M.L.J. 79 under the old Code, Unnamalai Ammal v. Mathan : (1917)33MLJ413 , Sudali Muthu Pillai v. Sudali Muthu Pillai (1922) 17 L.W. 623 and Somasundaram v.Chockalingam I.L.R. 1916 M. 780 under the new Code], and there is the authority of the Privy Council in Parag Narain v. Kamakhia Singh I.L.R (1909) A. 551 19 M.L.J. 599 (P.C.) that proceedings under the old Code, Section 583, were proceedings in execution. He contends strenuously that such matters as the payment of interest, damages, compensation, etc., which may be awarded under Section 144 cannot be matters in execution, since the decree in no way provides for them. Were the matter res Integra such a contention might be reasonable. But the trend of authority is too strong against it. Even under the old Section 583 all that the Court executing a decree could strictly do was to execute it and obviously the restoration by way of restitution of any sum paid under the decree before it was reversed by the appeal decree would not come strictly within the term ' execution '. Nevertheless it has been laid down by the Privy Council that restitution under Section 583 was a matter in execution. If then this term ' execution ' can be stretched to include restoration by way of restitution of the principal sum paid under a decree before it was reversed I see no difficulty in stretching the term a little further to include collateral reliefs of interest, damages and compensation. No doubt other High Courts have held that proceedings under the new Section 144 are not proceedings in execution [see Jiwa Ram v. Nand Ram I.L.R. (1922) A. 407 and Balmakund Marwari v. Basanta Kumarl (1924) I.L.R.3 Pat. 371 (F.B.)]. The view in Bombay is the same as in Madras [vide Kurgodi Gowda v. Lingam Gowda I.L.R. (1917) B. 625 and Hamidalli v. Ahmedali I.L.R. (1920) B. 1137]. In such matters it is more important that a uniform procedure be adhered to than that the strict wording of the section be enforced. I am not therefore prepared to uphold the contention that the present application for restitution is not an application in execution. I see therefore no objection in applying the principle of Section 37(b) in interpreting the phrase ' the Court of first instance ' when that Court has ceased to have territorial jurisdiction over the locality of the cause of action.

5. The ' Court of first instance ' in the present case therefore was the Additional District Munsif's Court of Tiruvalur, now the Principal District Munsif's Court of Nannilam.

6. The next point is that the application to the Principal District Munsif of Tiruvalur was improper and therefore cannot be called in aid to save limitation. The Lower Appellate Court got over that difficulty by holding that the present petition to the Additional District Munsif's Court of Tiruvalur was merely a continuation of the petition to the Principal District Munsif's Court of Tiruvalur. But I do not think that contention will hold. If the original petition is not a proper one the continuation of it cannot be proper. The respondent calls in aid Section 14 of the Limitation Act. It appears from the endorsements on the E.A. No. 628 of 1922 that it was being prosecuted in the Court of the Principal District Munsif from 16th August, 1922 to 25th September, 1922. This period will have to be excluded. The proper petition to the ' Court of first instance ' was put in on 27th September, 1922. The petition is, therefore, within the excluded period, within three years of 1st September, 1919 and is in time.

7. I see no reason to interfere with the order of the Lower Appellate Court and dismiss this appeal with costs.


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