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Jotindra Nath Ghose Vs. Jugal Chandra Santra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 110 of 1939
Judge
Reported inAIR1966Cal637
ActsCode of Civil Procedure (CPC) , 1908 - Section 144
AppellantJotindra Nath Ghose
RespondentJugal Chandra Santra and anr.
Appellant AdvocateAmar Nath Rai, Adv.
Respondent AdvocateS.N. Banerji, Adv.
DispositionAppeal dismissed
Cases ReferredBrij Lal v. Damodai Das
Excerpt:
- .....is entitled to any benefit by way of restitution is a person within the extended meaning of the word party' who can come forward to make an application under section 144 c. p. c. and he need nut be a 'party to the decree or to the appeal'.that principle is already recognised by the privy council in jai berham's ease 49 iml. app. 351: (air 1922 pc 269) of auction purchaser who was not 'a party to the suit'. it is also judicially recognised that it is not limited to parties to the appeal' and it is also judicially recognised that the word 'party'' must include a 'transferee of a decree passed in appeal'. in that context the words 'any person'' in order 21 rules 89 and 90 of the civil procedure code cannot by contrast limit or qualify the word 'parly' to a narrower meaning in section 144.....
Judgment:

P.B. Mukharji, J.

1. In this appeal a short and interesting point of law arises for determination. The point for determination is the interpretation of the word 'party' used in Section 144 of the Civil Procedure Code. The controversy is whether the word 'party' means only a party to the suit or the decree or the appeal or does it also include a stranger.

2. The facts giving rise to this appeal may be set out before proceeding to determine the question. The plaintiff instituted Title Suit No. 110 of 1952 against the respondent as defendant. The suit was decreed in part by the learned Munsif who allowed a decree for possession and eviction of the defendant. An appeal was thereafter taken from that judgment and decree before the learned Subordinate Judge who allowed the appeal and set aside the judgment and decree of the learned Munsif and dismissed the suit on the ground that the land in suit was held by the defendant's wife as a tenant. But the defendant's wife was not a party to the suit. Pending the decision of the appeal the plaintiff executed the decree and got possession of the land in suit and also realised the cost. When the appeal was allowed and the suit dismissed the defendant filed an application under Section 144 C. P. C. for restitution of the property. This application for restitution was joined by the defendant's wife who was not a party to the suit. The learned Munsif allowed the application and held that the defendant's wife although not a party to the suit was entitled to restitution and accordingly ordered the restoration of possession of the property to her.

3. From this order of restoration there was an appeal by the plaintiff. The learned Subordinate Judge dismissed the appeal and confirmed the order of the learned Munsif.

4. The question for determination, therefore, is can an order for restoration be made in favour of the defendant's wife who was not a party to the suit although she was a party to the application under Section 144 C. P. C. along with her husband. Section 144 of the Code of Civil Procedure inter alia reads as follows :--

'Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party 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 . . . .'

5. Mr. Rai for the appellant submits that the word 'party' in Section 144 C. P. C. means a party to the suit. In this connection he also draws our attention that where the Civil Procedure Code wanted to give benefit to those who are not parties, the Code used such language as 'any person' as in Order 21 Rule 89 or Order 21 Rule 90 C. P. C. He has also relied on certain authorities.

6. The first authority on which he relies is Gunga Prasad v. Brojo Nath Das, reported in (1908) 12 Cal WN 642. That was a decision on the old Section 583 C. P. C. It is held there that it is not necessary that a person asking for restitution under Section 583 C. P. C. should have been a party to the successful appeal, if the appeal is in effect and substance in favour of such a party. This decision, however, does not help the appellant because on the facts of that case both the parties were parties to the original suit and decree and what happened thereafter was that one was not a party to the appeal. Therefore the Court there expressed the view at p. 643 as follows :--

'It is not necessary that a person asking for restitution should be a party to the appeal, if the appeal is in effect and substance in favour of such a party. He is entitled to the benefits arising out of the decree in appeal and the Court may direct restitution of the property in execution.'

The authority may easily be turned against the contention because it is a tacit recognition of the principle that the word 'party' in Section 144 C. P. C. includes at least somebody who is not a party to the appeal and has therefore an extended meaning. Any how, this authority of course cart be used by Mr. Rai for the appellant to say that in any event the word 'party must mean that at least the person must have been party to the original suit Or decree.

7. We shall now test that proposition. Before we do so we have to notice two other decisions on which Mr. Rai relies. Mr. Rai has also relied on Ashutosh Nandi v. Kundal Kamini Dasi, reported in : AIR1929Cal814 . That decision lays down that the object of Section 144 C. P. C, is to provide a speedy and simple remedy for any party who has suffered by reason of an erroneous decree made by a Court of first instance and B.B. Ghose, J. observed at page 910 (of Cal WN): fat p. 815 of AIR):

'.....it does not apply to a case where the Court has to decide questions of conflicting rights under different decrees which may be very complicated'.

This authority again does not help the appellant. No question of deciding complicated or conflicting question of rights under different decrees arises in this case. The third case on which Mr. Rai for the appellant relies is Balwant Singh v. Mt. Laiqa Begam, reported in AIR 1924 All 273 the decision of a learned Single Judge. Kanhaiya Lal J. at page 273, observed as follows:

'It does not allow restitution to be made against a third party. The auction purchaser in the present instance was not the decree-holder and Section 144 C. P. C. has therefore no application. The object of that section is to place the parties to a decree in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed and the relief allowed by that provision can only be claimed against the party to such a decree obtaining the benefit prior to such variation or reversal'.

This is the best case in favour of the appellant. It holds in effect that the auction purchaser not being a party within the meaning of Section 144 C. P. C. is not entitled to apply for restitution thereunder.

8. With great respect to the learned Judge who took this view we are unable to accept that conclusion. In the first place it is directly against the decision of the Privy Council in Jai Behram v. Kedar Nath, reported in 49 Ind App 351: (AIR 1922 PC 269) and Kanhaiya Lal J. did not consider that Privy Council decision. The Privy Council in 49 Ind App 351: (AIR 1922, (sic) 269) was also dealing with an execution (sic) immovable property, which took place in 1904. There the sale and the certificate of sale, were set aside by the Privy Council in 1913, reversing the decree of the High Court at Calcutta. In that case the auction purchasers had been in possession since February 1905, and the price paid by them into Court had been distributed to the holders of decrees against the judgment-debtor; the purchasers had paid off two bonds secured on the property and mentioned as--incumbrauces in the certificate. Proceedings in restitution were thereafter started. The Privy Council held that before restoring the property, the purchasers were entitled to be paid the excess of the purchase price over the mesne profits, but not the amount paid by them to discharge the bonds, the latter payment not having been made under any order of the Court, and the purchasers having succeeded to the security. Lord Carson in delivering the judgment of the Privy Council observed at pages 355-56 of that report (49 Ind App): (at p. 271 of AIR) as follows:

'On the main question, namely, whether the auction purchasers are entitled to repayment of the deposit paid into Court as a condition precedent to their handing over possession to the judgment-debtors, their Lordships are in agreement with the judgment of the High Court, and think the order already referred to should on this point be affirmed. It is the duty of the Court under Section 144 of the Civil Procedure Code to 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.'

Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. As was said by Cairns L.C. in Rodger v. Comptoir d' Escoropte de Paris (1871) 3 P. C. 465 (475). One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court', is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case'. The auction purchasers have parted with their purchase money which they paid into Court on the faith of the order of confirmation and certificate of sale already referred to. This money has been distributed amongst creditors of the judgment-debtor who had attached the unincumbered property in question and could have realised their judgment debts by a sale of this property in execution, and it would be inequitable and contrary to justice that the judgment-debtor should be restored to this property without making good to the auction purchaser the moneys which have been applied for his benefit. It was argued that the remedy of the auction purchasers was either to apply for a certificate (sic) sale of the unincumbered property, or to (sic) from the judgment-creditors repayment og (sic) sums paid out to them under the orders of (sic) Court. Their Lordships cannot agree with (sic) ther of these suggestions, and for the reasons stated by the Judges of the High Court.'

A perusal of this observation and of the facts before the Privy Council will at once convince that an auction purchaser who was not a party to the suit or decree could apply for restitution under Section 144 C. P. C. and that was the ratio of the Privy Council decision. We respectfully follow the decision of the Privy Council on this point.

9. There is also the decision of the Allahabad High Court in Brij Lal v. Damodai Das, reported in ILR 44 All 555: (AIR 1922 All 238) an authority of a Division Bench. There Walsh, J. at p. 560 (of ILR All): (at p. 238 of AIR) observed as follows:

'We do not agree with the lower appellate court that it is necessary that a party to an application under Section 144 should have been a party to the decree. Section 144 is very wide in its terms. It includes matters which an execution court or an appellate court could not ordinarily deal with and the word 'party' is not used in that section in the sense 'party to the suit', the expression ordinarily found in other parts of the Code dealing with execution mutters, but must mean 'party to the application'. It so happens that in this particular case the matters arising out of the final decree of the Privy Council had been already on more than two occasions before this Court, although not always as between the identical parties now before us. We have decided to follow the view taken by this Court in the same or cognate matters arising out of this Privy Council decree. That is to say, firstly this Court has already held that Damodai Das, although not a party to the Privy Council decree, was bound to give up possession and that an application under Section 144 was properly made against him. We agree. That disposes of the second point decided in his favour by the lower court.'

10. We respectfully agree with the view expressed by Walsh, J.

11. Section 144 of the Code of Civil Procedure does not take away the court's inherent jurisdiction to grant restitution. Restitution is an indispensable adjunct of the Court's power to do complete justice where there is a variation or reversal of a decree so that the varied or the leversed decree is not allowed to operate to cause detriment or injustice created thereby or thereunder. Lord Carson in the Privy Council expressly pointed this out in 49 Ind. App. 351 at p. 355: (AIR 1922 PC 269 at p. 271). Restitution is really consequential on the variation or reversal of the decree. It is not a mere discretionary power with the Court. It is a solemn obligation of the Court. The doctrine of restitution is intended for the case where property has been received by a decree-folder in execution of a decree and that decree or a part thereof has been subsequently varied or reversed on appeal. Here the plaintiff obtained possession of the land in suit under a decree which was set aside on appeal and therefore he now its an appellant before us cannot be allowed to retain such laud under a decree which has been set aside. This is exactly where the inherent jurisdiction of the court to do justice must operate and be called into action. The appellant cannot be allowed to retain that property. The nature of the restitution is made expressly clear by the words in Section 144 C. P C, saying '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.' In order to do such restitution in the facts of this case the decree-holder cannot therefore, retain the property which he has got. It has been argued that the wife who was not a party to the suit in this case could have applied or taken step under Order 21 Rule 100 C. P. C. and because, she did not do so, therefore, the inherent jurisdiction to grant restitution should not be used in her favour. That is the argument. This argument misconceives the purpose and the object of restitution The failure to apply under Order 21 Rule 100 C P C. in such a case cannot act as a bar to restitution. The person dispossessed under Order 21 Rule 100 C. P. C. may apply. It is not an obligation on him, it is only permissive. He may not in his discretion apply and wait for the result of appeal in the hope of a surer ground, because it the appeal succeeds there will be no question of investigation as contemplated under Order 21 Rule 100 (2) of the Civil Procedure Code. Besides a decision under Order 21 Rule 100 is not final and even thereafter a suit lies to establish the right under Order 21 Rule 103 C P. C If, therefore, a person chooses in his discretion not to apply under Order 21 Rule 100 C P. C and prefers to wait for the result of the appeal, it cannot be said that his not using the permissive or inconclusive right under Order 21 R 100 C. P. C. is an excuse for this Court not to discharge its obligation to order restitution when the decree is modified or reversed in appeal. The doctrine, therefore, that the Court should not use inherent powers where there are specific powers under the Civil Procedure Code cannot also he invoked in the facts of this case. No. doubt the Court cannot make use of Section 151 C. P. C. where the applicant has his remedy fully provided elsewhere in the Code and he has neglected to avail himsell of it. Here restitution is as much a remedy under the Code as anything else. Indeed it is in many cases a better remedy than a procedure by way of objection and investigation under Order 21 Rule 100 C. P C. It is, therefore, in keeping with the whole object and purpose of restitution to construe the word 'party' in Section 144 of the Code of Civil Procedure as including any beneficiary under the final judgment in appeal, even though he is not technically a party to the suit or the appeal.

12-13. Having regard to the nature, purpose and object of restitution and having regard to the language used in Section 144 C. P. C. this Court is of the opinion that the word 'party' used therein is not confined to mean only a technical party to the suit or the appeal and must in an appropriate case include any person who answers the description conveyed by the language of Section 144 C. P. C. as ''entitled to any benefit by way of restitution or otherwise'. Thus these significant and qualifying words are intended to include any beneficiary under the final judgment be he in the technical sense a party or not in the suit or appeal. Therefore this expression must mean that whoever is entitled to any benefit by way of restitution is a person within the extended meaning of the word party' who can come forward to make an application under Section 144 C. P. C. and he need nut be a 'party to the decree or to the appeal'.That principle is already recognised by the Privy Council in Jai Berham's ease 49 Iml. App. 351: (AIR 1922 PC 269) of auction purchaser who was not 'a party to the suit'. It is also judicially recognised that it is not limited to parties to the appeal' and it is also judicially recognised that the word 'party'' must include a 'transferee of a decree passed in appeal'. In that context the words 'any person'' in Order 21 Rules 89 and 90 of the Civil Procedure Code cannot by contrast limit or qualify the word 'parly' to a narrower meaning in Section 144 of the Code. The word 'party' has been used in diverse contexts in different section of the Civil Procedure Code. To apply the meaning of the word 'party' in the context of a particular section or Order of the Civil Procedure Code as a matter of course to construe, the word 'party' used in other sections of the Code without regard to the individual context of the section or Orders intended for construction and without regard to the very object and the purpose of such sections or Orders under interpretation would be to follow an erroneous principle of interpretation. For instance, the word 'party' has special connotation and limitation under Section 11 of the Code of Civil Procedure dealing with the question of resjudicata. Indeed this is the reason why the (sic) 'party' has not been defined by the Civil (sic) cedure Code.

14. For these reasons this appeal (sic) and is dismissed with costs--hearing fee(sic) assessed at three gold mohurs.

D. Basu, J.

15. I agree.


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