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Kishori Mohan Shadhu and ors. Vs. Kumar Brahma Niranjan Chakravarty Bahadur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal554
AppellantKishori Mohan Shadhu and ors.
RespondentKumar Brahma Niranjan Chakravarty Bahadur
Excerpt:
- .....word may be used - to act under section 144 and order the return of the money realized in the asansol execution proceedings. it has been said that under section 47, the asansol court could make-the order. of that i am more than doubt, ful. section 47, sub-section (1) says:all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.5. as i have already said, it is the function of the asansol court to execute the decree sent to it by the jamtara court. it did so-and thereby exercised its legitimate functions. thereafter, that is to say, at the time-when this application was made to.....
Judgment:

Derbyshire, C.J.

1. This is an appeal from an order made by the Subordinate Judge of Asansol on 6th December 1935 in the matter of an application under Section 144 and Section 47, Civil P. O. made by the judgment-debtors Kishori Mohan Sadhu and others for refund of Rs. 19,760-15-0 which the decree-holder, Raja Satya Niranjan, had realized from them by executing a decree obtained by him in Title Suit No. 2 of 1915 of the Court of the Subordinate Judge of Jamtara on 9th September 1927. The learned Subordinate Judge refused the application and from his order of refusal this appeal has been brought.

2. The facts shortly are these : The decree-holder, Raja Satya Niranjan, brought a suit against the judgment-debtors for trespass to property and was awarded against the defendants, the present judgment-debtors, a sum of Rs. 18,602 as damages with costs. Those proceedings were brought in the Jamtara Court. The decree was put to execution in the Jamtara Court and the property of the judgment-debtors was sold by auction under the orders of the Court, being purchased by the decree-holder for Rs. 45,000. The decree-holder paid into Court the balance of the purchase price after satisfying the judgment-debt of Rs. 18,000 odd, that is to say, he paid into Court the sum of Rs. 25,000 odd. Certain other persons claiming an interest in the subject-matter of the auction sale moved the Jamtara Court to set aside the sale and the sale was set aside. The decree- holder appealed against the order setting aside the sale to the High Court of Patna which reversed the order setting aside the sale and held the sale to be valid. In the meantime, after the Jamtara Court had set aside the sale and before the Patna High Court restored it, the decree-holder moved the Jamtara Court to have the decree transmitted to the Asansol Court for execution there against the judgment-debtors. The Asansol Court duly executed the decree against the judgment-debtors realizing a sum of Rs. 19,000 odd. It was after the execution of the decree and satisfaction of it in the Asansol Court that the Patna High Court declared the original sale to be valid. Thereupon the decree-holder was placed in possession of the land and he repaid to the judgment-debtors in the Patna Court the sum of Rs. 25,000 which he had withdrawn after the sale was set aside. The judgment-debtors say that the decree against them has been satisfied twice over, once by the sale of their land in the Jamtara Court and secondly by the execution proceedings in the Asansol Court. Accordingly they applied to the Asansol Court for repayment of the sum realized from them in the execution proceedings in the Asansol Court by the decree-holder. The learned Judge has refused the application for return of this money and it is against that order of refusal that this appeal has been brought.

3. The judgment-debtors say that they are entitled to the return of the money under Sections 144 and 47, Civil P.C. and they have contended also that the Aaansol Court could make the order asked for also under Section 151, Civil P.C. Before us the decree, holder has contended that the decree has not been more than satisfied and that he is not liable to pay anything to the judgment-debtors. It is obviously difficult for us-as it was for the Court below-to arrive at any conclusion on this matter, because we have not all the evidence before us. It appears to me that the judgment-debtors' proceedings in the Asansol Court for return of moneys realized in execution are misconceived. The decree was sent from the Jamtara Court to the Asansol Court for execution. The only function of the Asansol Court was to execute the decree. The Asansol Court executed the decree and thereupon it became functus officio, if I may [use the expression. The Asansol Court had done what it was bound to do according to law and, as far as one can see, there has been no abuse of the process of the Court. When the Patna High Court reversing the order of the Jamtara Court restored the sale of the property in the Jamtara Court and declared it to be valid, the judgment-debtors had certain rights. The method of giving effect to those rights is set out in Section 144, Civil P. C, which says:

Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party, be entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

4. Therefore the judgment-debtors had the right to go to the Court of first instance for such restitution as was just and proper consequent upon the reversal of the order of the Jamtara Court by the Patna High Court; the Court of first instance was the Court at Jamtara, and if proper application had been made under Section 144, Civil P. C, the Court at Jamtara would have made such restitution as, after due enquiry and proof, it should deem proper. The application was made to the Jamtara Court, but it does not appear to have been fully pursued, and instead this application was made to the Asansol Court. In my opinion, the Asansol Court not being the Court of first instance had no authority or jurisdiction-if the latter word may be used - to act under Section 144 and order the return of the money realized in the Asansol execution proceedings. It has been said that under Section 47, the Asansol Court could make-the order. Of that I am more than doubt, ful. Section 47, Sub-section (1) says:

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

5. As I have already said, it is the function of the Asansol Court to execute the decree sent to it by the Jamtara Court. It did so-and thereby exercised its legitimate functions. Thereafter, that is to say, at the time-when this application was made to the Asansol Court, that Court was not the Court executing the decree. The Court executing the decree was the Court which originally executed the decree, namely the Jamtara Court. If it is said that the order could be made under Section 47, I am of the opinion that that contention is not well founded. It is then said that the Asansol Court could make the order under Section 151, which reads:

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.

6. That is a very valuable and far-reaching, provision. But it must be invoked only in a proper case. Can it be said that it was necessary for the ends of justice that this order should be made by the Asansol Court? I am of the opinion that it could not, because there was a remedy open to the judgment-debtors prescribed by law under Section 47 of the Code available to them in the Jamtara Court. Nor could it be said that such an order ought to be made to; prevent abuse of the process of the Court. I can see no evidence of any abuse of the-process of the Asansol Court. The Asansol Court executed the decree properly sent to it in accordance with law. No occasion arose to prevent the abuse of the process of the Court. In my opinion therefore the contention that the provisions of Section 151 could have been invoked by the Asansol Court fails. For the reasons given above, I am of the opinion that these proceedings in the Asansol Court must fail. It may well be that the judgment-debtors have, if, as they say, they have more than satisfied the decree, a remedy against the decree- holder in the Jamtara Court either under Section 144 or in some other proceeding. It may well be-though I express no opinion-that the appellants judgment-debtors are entitled to pursue those remedies hereafter. For these reasons I am of the opinion that this appeal must be dismissed with costs, the hearing-fee being assessed at three gold mohurs. The application is dismissed without any order as to costs.

B.K. Mukherjea, J.

7. I agree and I want to add a few words. It has been conceded by Mr. Mukherjee who appears for the appellants that the present application does not in terms come within the purview of Section 144, Civil P.C. He contends however that the Court has got a general jurisdiction inherent in it which it can exercise in a proper case under the provisions of Section 151, Civil P.C. In my opinion the facts of the case are not such as would attract the operation of Section 151, Civil P.C. The right to get restitution obviously rests on the principle that the acts of the Court could not prejudice anyone and if on the basis of an order which has been subsequently set aside or reversed, certain proceedings had been taken by reason of which the parties had suffered loss they are entitled to get restitution and to be placed in the same position as they would have occupied but for the wrong order which has been set aside. In the present case the original order which occasioned loss to the petitioner was obviously the order of the Jamtara Court setting aside the execution sale under Order 21, Rule 90, Civil P.C. That order was subsequently superseded in appeal and the judgment, debtors were obviously entitled to claim restitution by a proceeding under Section 144, Civil P.C. by presenting their application to the Jamtara Court whose order was subsequently set aside by the superior tribunal. So far as the Asansol Court is concerned, it was the transferee Court to which the decree was transmitted for execution by the Subordinate Judge of Jamtara. This Court was bound to accept the copy of the decree and the certificate of non-satisfaction that were transmitted to it as correct and it had no jurisdiction to go behind them and start an inquiry as to whether the certificate of non-satisfaction was proper or not. Its function ended when under Section 41, Civil P. C, it sent back the certificate regarding the result of the execution proceedings to the Jamtara Court. Obviously therefore there was no abuse of the process of the Court so far as the Subordinate Judge of Asansol was concerned and there was no miscarriage of justice which necessitated its interference under Section 151, Civil P.C. Mr. Mukherjee attempts to show that the Jamtara Court would not be the proper Court to entertain the application so far as the refund of the sum of Rs. 19,000 (nineteen thousand only) was concerned. I do not think that he is right. It is perfectly immaterial by which Court this money was actually realized in execution proceedings. The Jamtara Court was the Court which held the execution sale and whose order setting aside the sale was reversed by the Patna High Court. It is the proper Court to exercise jurisdiction under Section 144, Civil P.C. and to grant relief to the parties, against all losses consequent on the wrong order which it passed in the matter of setting aside the sale. It is not necessary that there should be as many applications for restitution as there are Courts to which the decree might have been transmitted for execution on the basis of the wrong order which set aside the sale and treated the decree as still unsatisfied. As there was a proper remedy open to the appellants to avail of under Section 144, Civil P. C, I think that they should not be allowed to invoke the provision of Section 151, Civil Procedure Code.

8. The result therefore is that although I do not agree with the view taken by the Subordinate Judge that there was any order of the Jamtara Court which operated as a bar to the execution proceedings, I agree with my Lord the Chief Justice that the appellants misconceived their remedy altogether and that the Asansol Court was not the proper Court to which the application under Section 144, Civil P.C. would lie. I am also of the opinion that it was not a proper case in which relief could be given under Section 151, Civil P.C. For these reasons the present application must be dismissed. It will be open to the appellants petitioners to have their remedy in the proper Court if they are so advised.


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