1. The judgment-debtor Satish Chandra Lahiri is the appellant in this case. It appears that on 7th November 1932 his landlord, Raja Protiva Nath Roy, obtained a decree against him. In execution of this decree the decree-holder sold the appellant's holding on 21st June 1933. On 29th June 1936, the decree-holder auction-purchaser obtained symbolical delivery of possession of the holding. Thereafter on 13th July 1936, the judgment-debtor applied under Section 174(3), Ben. Ten. Act, to have the sale set aside. On 10th October 1936 the matter regarding the judgment-debtor's application under Section 174(3), Ben. Ten. Act, was compromised between the parties and it was arranged that the sale should be set aside on payment by the judgment-debtor to the decree-holder of the sum of Rs. 92 in two instalments. These instalments were admittedly duly paid. On 17th November 1937 the judgment-debtor filed an application in the first Court under the provisions of Section 144 read with Section 151, Civil P.C., for the recovery of compensation from the decree holder auction-purchaser on the ground that, in spite of the compromise which had been effected on 10th October 1936, the possession of the judgment-debtor's holding had not been made over to him and that the landlord had realized rent from the judgment-debtor's tenants even after the date on which the compromise was effected. This application was allowed by the first Court but, on appeal by the decree-holder auction-purchaser, the decision of the first Court was set aside on a finding to the effect that after the date of the compromise the landlord had never exercised any act of possession in respect of the judgment-debtor's holding.
2. A preliminary objection has been raised by the learned advocate for the respondent to the effect that no appeallies. In the first place, he relies upon Section 102, Civil P.C. I am of opinion however that this Section can have no application in the present case as the proceeding in connexion with which this appeal has been filed was not a suit within the meaning of Section 102, Civil P.C, but was merely a miscellaneous proceeding to enable the judgment-debtor to obtain compensation from the decree-holder by applying the principles of Section 144 of the Code. The learned advocate then argues that, in any event, an appeal is barred under the provisions of Section 153, Ben. Ten. Act. There seems to be no doubt that the amount claimed in the rent suit did not exceed Rs. 100 and admittedly execution proceedings must be treated as a continuation of the suit. It therefore follows that, if the judgment-debtor's application can be regarded as a proceeding in execution of the decree, an appeal to this Court would be barred under Section 153, Ben. Ten. Act. I am however of opinion that having regard to the nature of this application it cannot be said to be an application in an execution proceeding. As already explained it was an application under Section 144 read with Section 151, Civil P.C. There has been some difference of judicial opinion as to whether or not an application under Section 144 is an application in execution. With regard to this matter, it was pointed out by Sir George Rankin C.J. in Saraj Bhusan v. Debendra Nath : AIR1932Cal308 that most of the Calcutta cases are to the effect that an application under Section 144 cannot be regarded as an application in execution. His Lordship then observed:
I am not prepared to say that I disagree with those decisions. There are a good many matters to be canvassed; but it does seem to me that, having regard to the fact that execution proceedings are not within Section 141, having regard to the fact that large claims for damages may have to be entertained under Section Hi and that Section Hi has not been put in that part of the Code which deals with execution, but in the Chapter of the Code which deals with miscellaneous matters, it is by no means clear that the contention that an application for restitution is an application in execution ought to be accepted.
3. The question was further considered by this Court in Tarak Chandra Ray v. Panchanan Banerjee : AIR1937Cal152 . In that case Mukherjea J. in his judgment cited the decision of Rankin C.J. in Saraj Bhusan v. debendra nath : AIR1932Cal308 and held that a proceeding for restitution is not an execution proceeding and consequently such an application does not come within Section 47, Civil P.C. I entirely agree with the views expressed by the learned Judges who decided the abovementioned oases. Having regard to the very nature of an application under Section 144, Civil P.C, I do not think that in any sense it can be regarded as an application in an execution proceeding. On the other hand, it is ordinarily an application made by a person in whose favour a decree has been reversed or varied after a final adjudication in the matter in dispute has been obtained and after the conclusion of any execution proceedings which may have been taken, for the purpose of nullifying any adverse effects which may have resulted to him by reason of the fact that the decree in question has already been executed against him. In this view of the case, I do not think it can be said that an appeal is barred under the provisions of Section 153, Ben. Ten. Act.
4. As regards the merits of the appeal it self, the main contention put forward by the learned advocate for the appellant is that the symbolical delivery of possession which took place on 29th June 1936 amounted to delivery of actual possession as between the decree-holder and the judgment-debtor and that, this being the case, his client was prevented from realizing rents from his tenants after the delivery of possession had been effected. He therefore argues that in deciding this, matter the learned Subordinate Judge proceeded upon an erroneous view of the law. The judgment of the lower Appellate Court contains a clear finding to the effect that the decree, holder never exercised any act of possession at all in respect of the property which he had purchased in execution of his decree. It is admitted as regards the judgment-debtor's application to set aside the sale which he filed on 13th July 1936, that this matter was compromised on 10th October 1936. In my opinion the effect of this compromise was clearly entirely to nullify the effect of any symbolical delivery of possession which may have taken place on 29th June 1936. By agreeing to this compromise the decree-holder restored to the judgment, debtor any rights which he may have acquired by virtue of the symbolical possession which he obtained on 29th June 1936 and it seems to be quite clear that this must have been his intention because, as appears from the findings in the judgment of the lower Appellate Court, after the compromise was effected he never exercised any act of possession in respect of the judgment debtor's holding. This being the case there was, in my view, nothing to prevent the judgment-debtor after 10th October 1936 from instituting appropriate proceedings to recover rent from his tenants and, if he failed to do so, such failure must be regarded as due to his own negligence. Having regard to the considerations mentioned above, I am of opinion, that the decision of the lower Appellate Court is correct. It is therefore affirmed and this appeal is dismissed with costs. The hearing-fee is assessed at two gold mohurs.