B.K. Mukherji, J.
1. The question raised in this revision case relates to the amount of court-fees that are payable on a memorandum of appeal filed against an order passed in a proceeding for restitution under Section 144, Civil P.C. The facts shortly stated are these: In the year 1913, when the present petitioner was a minor, there was a mortgage suit started against him by one Rama Nath Banerjee, predecessor of opposite parties 1 to 3, on a mortgage bond alleged to be executed by the petitioner's father. The petitioner was represented by his mother, who was an illiterate lady and could not look to his interest properly, and a decree was passed in this mortgage suit which was based on an award made by an arbitrator, who was no other than a brother of the said mortgagee, Ramanath. In execution of this mortgage decree all the properties of the petitioner were gradually sold and purchased by the decree-holder except the properties described in schedule (gha), but Rama Nath took forcible possession of this property as well.
2. After the petitioner attained majority he instituted a suit in the year 1928, against opposite parties 1 to 4, the first three defendants being the sons and heirs of Rama Nath, and the fourth an alienee from Rama Nath of the (gha) schedule property, for recovery of possession of all these properties, on a declaration that the mortgagee decree and the ex-sale consequent thereon were fraudulent and void. This suit culminated in a decree in favour of the petitioner on 31st July 1931, which was subsequently affirmed in appeal. The petitioner in execution of his decree got back possession of all the properties on 20th August 1931. It may be said here that though there was a prayer for delivery of possession in the suit instituted by the petitioner, he did not make any prayer for recovery of mesne profits, the rights being reserved for another litigation. Instead of filing a suit for mesne profits, however, the petitioner was advised to commence this present proceeding which purported to be under Section 144 and Section 151 Civil P.C., and therein he claimed recovery of mesne profits to the extent of nearly Rs. 46,000 for the period of his dispossession. The trial Court rejected the application holding that Section 144 was inapplicable to the facts of the case, and it was not a case which could properly be dealt with under Section 151, Civil P.C. Against this order of rejection an appeal was taken to the lower appellate Court, and a preliminary point was raised as regards the court-fees that were payable upon this memorandum of appeal. The District Judge held that ad valorem court-fees were payable under Sch. 1, Article 1, Court-fees Act, and it is against this order that the present rule has been obtained.
3. Mr. Sen who has appeared in support of the Rule has contended before us in the first place that the present case is governed by Article 11, Sch. 2, Court-fees Act, read with Clause (6) of the notification of the Government of India No. 4650, dated 10th September 1899, and the court-fee payable is two rupees only. In support of this contention he has relied upon two decisions of this Court, viz., Gangadhar Marwari v. Lachman Singh (1910) 11 C L J 541 and Madan Mohan De v. Nogendra Nath De AIR 1918 Cal 335. The second contention of Mr. Sen is that in any view of the case the order appealed from may be taken to be an order under Section 151, Civil P.C., for which a court-fee of Rs. 2 only is payable.
4. Now on the first point, Article 11, Sch. 2, Court-fees Act, standing by itself is of no assistance to the petitioner. That article lays down that in a memorandum of appeal presented to the High Court when the appeal is not from a decree of an order having the force of a decree, the court-fee payable is Rs. 2. An order under Section 144, Civil P.C., is obviously an order having the force of a decree, and the Article therefore has no application to the present case. There was, however, a notification by the Government of India which is mentioned above, and which is repeated in Bengal Government's Notification No. 1872-J, dated 23rd May 1921, under which the fee chargeable on appeals from orders under Section 47, Civil P.C., was limited to the amount chargeable under Article 11, Sch. 2. Mr. Sen contends that the application under Section 144, Civil P.C., really comes under Section 47 of the Code and as such the present case comes within the benefit of the notification mentioned above. The controversy therefore narrowed down to the short point as to whether the application under Section 144, Civil P.C., comes within the purview of Section 47. In Gangadhar Marwari v. Lachman Singh (1910) 11 C L J 541 the application for mesne profits was made not by the plaintiff, but by the defendant by way of restitution under Section 583 of the old Civil P.C., after the suit was dismissed against him with costs. The application, it was held, would come under Section 244, Civil P.C., and an appeal against the order would be within the purview of the notification, and could be filed with a court-fee of two rupees only. This case rather assumed than decided that an application for restitution would be within the scope of Section 244 of the old Code, though a distinction was made between a proceeding for recovery of mesne profits started at the instance of the defendant and one at the instance of the plaintiff, implying thereby that it would not lie within the plaintiff to avail himself of the procedure for restitution, for recovery of mesne profits, which he could and should have claimed in a suit. This was followed by Mr. Chatterjee, J. in Madan Mohan De v. Nogendra Nath De AIR 1918 Cal 335 and it was held that a proceeding for restitution was really an application for execution and hence came within Section 47, Civil P.C. Mr. Chatterjee, J. referred to the provisions of Section 583 of the old Code, which expressly provided that the Court should proceed to execute the decree passed on appeal according to the rules for execution of decree in suits. It is true that in Section 144 of the Code of 1908 this provision was omitted, but this was immaterial according to the learned Judge, for in substance the Court granting restitution, executes the decree of reversal, which by necessary implication carries with it the right to restitution. It may be pointed out that since the introduction of the new Code, the general trend of opinion of this Court was against holding restitution applications as applications for execution: see Harish Chandra v. Chandra Mohan (1901) 28 Cal 113 and Ashutosh v. Upendra Prosad AIR 1917 Cal.
5. As observed by Rankin, Saroj Bhusan Ghosh v. Debendra : AIR1932Cal308 , there is room for comment on each one of these cases, and the point was not clearly or elaborately discussed in any one of them but it showed the general opinion and the learned Chief Justice himself adhered to this view though not without some hesitation. As matters stand, there is a clear conflict of opinion on this point entertained by the various High Courts in India. The Madras and Bombay High Courts have consistently maintained the view that the expression 'execution' is wide enough to cover all proceedings under Section 144: see Kurgodigouda v. Naiganagouda AIR 1917 Bom 210; Hamed Ali v. Ahmed Ali AIR 1921 Bom 67 and S. Somasundaram v. Chokalingam AIR 1917 Mad 185. The Allahabad, Patna and Rangoon High Courts on the other hand have taken the contrary view: see Baijnath v. Balmakund : AIR1925All137 ; Balmukund v. Basanta AIR 1925 Pat 1 and Maung Hla Maung v. Ma Hnin Dauk AIR 1930 Rang 241.
6. In this state of authorities we are not prepared to differ from the opinion of this Court expressed in the cases noted above. Indeed a distinction between execution and restitution is noticeable on more grounds than one. Section 144 appears not in the chapter on execution, but is treated as a sort of miscellaneous proceeding in the Code. A party seeking restitution, does not strictly speaking want to execute any decree, and it is by some violence to the language that we can speak of the judgment of reversal, making by implication, an additional decree that the successful party will get from the other side that the latter had got in the meantime by execution of the original decree, and restitution is nothing but execution of this implied negative aspect of the decree of reversal. The right of restitution undoubtedly follows from the judgment of reversal and is based on the broad principle that the acts of Court should prejudice none of the parties, but it cannot be said that the Court granting restitution is executing a decree. As pointed out by the Patna High Court in the Full Bench case mentioned above Balmukund v. Basanta AIR 1925 Pat 1, the Court in an application under Section 144 has a wider range of jurisdiction than an executing Court which can only enforce the decree or order as it stands. It can award interest and compensation, which the executing Court cannot. But apart from this we are concerned in this case with an interpretation of the Government notification mentioned above. If it were the intention of the Government that appeals from orders under Section 144 would also be exempted from payment of ad valorem fees it is not clear, why the section was not specifically mentioned. It appears to us that restitution applications being miscellaneous proceedings in the nature of suits, where large amounts claimed as damages might be involved, the Government deliberately omitted Section 144, Civil P.C., from the notification exempting payment of ad valorem court-fees in appeals from such orders. We, therefore, overrule the first contention of Mr. Sen and hold that the memorandum of appeal ought to be stamped with an ad valorem court-fee under Sch. 1, Article 1, Court-fees Act.
7. The second contention of Mr. Sen amounts to this that: the application for restitution was alternatively under Section 151, Civil P.C., and hence the appeal may be taken to be an appeal from an order under Section 151 and not under Section 144, Civil P.C., and the question whether Section 144 proceedings are really proceedings in execution will not in that event arise.
8. We are unable to see how the contention assists Mr. Sen's client. In the first place, the memorandum of appeal purports to be one from an order under Section 144, Civil P.C., and not from an order under Section 151 of the Code. But leaving aside this technical point, an order under Section 151 is not an appealable order under the Code and so the appeal cannot be treated as an appeal from an order within the meaning of Article 11, Sch. 2. Mr. Sen relies upon the decision in Sashi Kanta v. Jalil Baksh : AIR1931Cal779 , as an authority for the proposition that when the Court decides a matter under Section 151, Civil P.C., which is of the same nature as one under Section 144, Civil P. C, there is an appeal from the order in the same way as there is an appeal from an order under Section 144, Civil P.C. This decision further lays down that on the facts of that case, the proceedings for restitution which were started before the executing Court by a judgment-debtor for recovery of mesne profits after setting aside of an execution sale could come within Section 47, Civil P.C. Now an appeal is undoubtedly a creature of statute, and no appeal could possibly lie from an order under Section 151, Civil P.C., taken by itself. The decision can be explained however by saying that an appeal may lie if the order passed under Section 151, is one which in sub stance comes under Section 47 or Section 144 of the Code. In the present case if the order is taken as one under Section 144, Civil P.C., it does not benefit the petitioner. It cannot, in our opinion, be taken as an order under Section 47, Civil P.C. It was not an application before the executing Court at all as in the decision reported in Sashi Kanta v. Jalil Baksh AIR 1931 Cal 779, nor did it relate to any question regarding execution, satisfaction and discharge of a decree. The jurisdiction which the Court was called upon to exercise could at the best be said to be the same jurisdiction which the Court could exercise under section 144, Civil P.C. As we have said already an application under Section 144, Civil P.C., does not come within Section 47, Civil P.C. Hence the second contention also fails.
9. The result is that the rule is discharged with costs. The hearing fee is assessed at one gold mohur. The court-fees must be paid within a month from the date of the arrival of the record in the lower Court.
M.C. Ghose, J.
10. I agree.