1. This is an appeal by the judgment debtors against an order of dismissal made on an application for restitution in the course of proceedings in execution of a mortgage-decree.
2. On the 21st February 1916 the respondent obtained a mortgage-decree against the appellants. On the 17th July 1917 the mortgaged property was sold in execution and was purchased by the decree-holder. No specific bid appears to have been offered by the decree-holder, but it was stated that he purchased the property for whatever was due to him on the decree at the time of the sale. On the 14th August 1917 the judgment-debtors applied to have the sale set aside under Order XXI, Rule 90, Code of Civil Procedure, but this application was not heard for a considerable time.
3. On the 9th February 1918 the decree holder-auction-purchaser and the judgment-debtors came to a settlement to the effect that if the judgment-debtors paid to the decree-holder Rs. 1,313 on or before the 2nd April 1918, the sale would stand cancelled, but on default the sale would stand confirmed. Neither of the two contingencies contemplated by the parties, however, happened. The judgment-debtors did not pay the full amount specified on the day fixed; they paid only Rs. 317, whereupon the decree-holder agreed to extend the time for payment till the 20th April 1918, subject to the reservation that if the balance was not paid within the period specified, the sale would stand confirmed. This arrangement, like that made on the 9th February 1918, received the sanction of the Court. On the 20th April 1918, however, the judgment-debtors brought in only Rs. 230, whereupon the decree holder again agreed to an extension of time till the 15th May 1918, subject to the condition that if what remained still due was not paid on or before that date, the sale would stand confirmed. On the 16th May 1918, no payment was made and an application for further extension of time by the judgment-debtors was refused. The consequence was that on the day following, the 17th May 1918, the sale was confirmed and the application for cancellation of the sale, made on the 14th August 1917, was dismissed. The effect of the order for confirmation was that under Section 65 of the Civil Procedure Code the title to the property purchased by the decree-holder vested in him, as auction-purchaser, from the date of the sale, and, as the decree-holder had agreed to take the property for whatever sum was due under the mortgage-decree, the result was complete satisfaction of the claim under the mortgage, The position then was that although the judgment debt was satisfied in full by the purchase of the mortgaged property by the decree holder, he still held in his hands the two sums of Rs. 317 and Rs. 230 paid to him by the judgment-debtors on the 2nd and 20th April 1918 respectively. This is was overlooked at the time when the order for confirmation was made; for it is inconceivable that if the matter had been brought to the notice of the Court, an appropriate order would not have been made in this behalf. The judgment-debtors, however, waited till the 7th February 1920, when they made the present application for restitution of the two sums mentioned. The Court of first instance held that the judgment-debtors were entitled to a refund of the amount claimed. Upon appeal the District Judge has reversed that order on the ground that the remedy of the judgment-debtors lies by way of a regular suit in the Civil Court. We are of opinion that this view cannot be supported.
4. There is no doubt that the case before us is not covered by the express terms of Section 144, Civil Procedure Code, which recognises the principle of restitution. The question, consequently arises, whether it is competent to the Execution Court, in the exercise of its inherent power, to make an order for restitution with a view to secure complete justice between the parties concerned. Our attention has been drawn to the decisions in Dinesh Prasad v. Sankar Chaudhury 2 C.L.J. 537 : 9 C.W.N. 381, Raghu Singh v. Shew Prosad Rai 17 Ind. Cas. 121 : 16 C.L.J. 135 and Rai Raghubir v. Jai Indra Bahadur Singh 55 Ind. Cas. 550 : 46 I.A. 228 : 22 O. C. 212 : 6 O.L.J. 682 : 38 M.L.J. 302 : 18 A.L.J. 253 : 22 Bom. L.R.521 :42 A 158 : 13 L.W. 82 (P.C.), where restitution was directed on reversal of a decree under circumstances which might be taken to attract the operation of Section 144, Civil Procedure Code. We need not consequently discuss the applicability of the principle deducible from those oases. But it is plain from the decisions of this Court in Beni Madho Singh v. Pran Singh 14 Ind. Cas. 456 : 15 C.L.J. 187, Krishna Chandra Mandal (Narendra Chandra Mandal) v. Jogendra Narain Roy 27 Ind. Cas. 139 : 20 C.L.J. 469 : 19 C.W. N. 537, Asutosh Goswami v. Upendra Prosad Mitra 38 Ind. Cas. 17 : 21 C.L.J. 467 : 21 C.W.N. 564, Atul Chandra Singha v. Kunja Behari Singh 43 Ind. Cas. 775 : 27 C.L.J. 451 and Amirannessa Chowdhurain v. Karimannessa Chowdhurain 22 Ind. Cas. 889 : 18 C.W.N. 1290 that the Execution Court is competent, in the exercise of inherent power, to make an order for restitution even in cases not comprised within the terms of Section 141. A similar view has been taken elsewhere, as appears from the judgments in Collector of Meerut v. Kalka Prasad 28 A. 665 : 3 A.L.J. 556 : A.W.N. (1906) 171 and Sukhdeo Dass v. Rito Singh 39 Ind. Cas. 763 : 2 P.L.J. 361 : 1 P.L.W. 551. The only instance where a restricted view has been taken of the competence of the Court to make an order for restitution in cases not governed by Section 144 is Safaraddi v. Durga Prosad Sen 16 Ind. Cas. 936 : 16 C.L.J. 83, which has been unfavourably oommented upon in later cases, such as Asutosh Goswami v. Upendra Prosad Mitra 38 Ind. Cas. 17 : 21 C.L.J. 467 : 21 C.W.N. 564 and Sukdeo Dass v. Rito Singh 39 Ind. Cas. 763 : 2 P.L.J. 361 : 1 P.L.W. 551. There can, in our opinion, be no room for dispute that the Court is competent to exercise its inherent power in cases of this description, and this has indeed been recognised by the Judicial Committee. In the case of Prag Narain v. Thakur Kamakhia Singh 3 Ind. Cas. 798 : 36 I.A. 197 : 10 C.L.J. 257 : 11 Bom. L.R. 1200 : 6 M.L.T. 303 : 14 C.W.N. 55 : 19 M.L.J. 599 : 31 A. 551 : 13 O.C. 180 (P.C.) it was ruled that the Court has inherent power to make restitution and a party entitled to it should not be referred to a regular suit, merely because the case may not fall within the purview of the appropriate section of the Code of Civil Procedure. Lord Macnaghten observed that as precisely the same relief would be obtained whether the application were made in a separate suit or in the execution proceedings, the litigant should not be driven to a separate suit. To the same effect is the observation in Shamu Patter v. Abdul Kadir Rowthan : (1912)14BOMLR1034 , namely, that every Court trying Civil cases has inherent jurisdiction to take cognizance of questions which go to the root of the subject-matter of controversy between the parties. The principle was recognised again in Prabhu Dyal v. Kalyan Das 33 Ind. Cas. 505 : 43 I.A. 43 : 20 C.W.N. 425 : 19 M.L.T. 206 : (1916) 1 M.W.N. 234 : 3 L. W. 293 : 23 C.L.J. 411 : 38 A. 163 : 18 Bom. L.R. 382 (P.C.), where the Judicial Committee affirmed the decision of the Allahabad High Court in Parbhu Dayal v. Ali Ahmad 4 Ind. Cas. 376 : 32 A. 79 : 7 A.L.J. 1. In the case before us, there is no question that if the mattar had not been overlooked at the time of the confirmation of the sale, an order for restitution would have been made. Consequently the observation of Lord Shaw in Debi Bakhsh Singh v. Habib Shah : (1913)15BOMLR640 applies, namely, that quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake or omission which had been inadvertently made. There is a long series of oases in this Court where it has been ruled that the Court has inherent power to recall money improperly paid out; amongst these, reference may be made to Mrinalini Dasi v. Abinash Chunder Dutt 6 Ind. Cas. 508 : 11 C.L.J. 533 : 14 C.W.N. 1024, Nobin Kali Debi v. Banalata Debi 2 C.L.J. 595 : 32 C. 921 and Jogesh Chandra Rau v. Yakub Ali 21 Ind. Cas. 111 : 17 C.W.N. 1057. We hold accordingly that the Execution Court had ample power to make an order to prevent what would be essentially a miscarriage of justice. We may add that a possible difficulty, indicated by Lord Sumner, as to the applicability of Section 151, in Sabitri Thakurain v. Savi 60 Ind. Cas. 274 : 48 I.A. 76 : 40 M.L.J. 308 : (1911) M.W.N. 159 : 19 A.L.J. 281 : 33 C.L.J. 307 : 25 C.W.N. 557 : 28 Bom. L.R. 631 : 43 C. 481 : 14 L.W. 362 : 3 U.P.L.R. (P.C.) 57 (P.C.), namely, the difficulty of invoking the inherent power of the Court when there is an express provision to the contrary in a Statute, does not arise in the case before us. Here Section 144 does not define the fall measure of the power of the Court to make an order for restitution; we may consequently take the provisions of that section as a guide to determine in what class of cases an order for restitution may be made, so that complete justice may be made between the parties and they may be restored to the status quo ante. There is thus no escape from the conclusion that an order for restitution should be made in this case.
5. Finally, the respondent has urged that as execution purchaser, he has suffered injury by reason of the delay in the confirmation of sale and that this circumstance should be borne in mind when an order for restitution is made. This contention is obviously entitled to some consideration. But we observe that the Court of first instance did not direct a refund of the sums paid by the judgment-debtors with interest. The decree-holder has had the benefit of those payments for a considerable length of time, and if there was delay in the confirmation of sale, he was in part at least responsible because he consented to an adjournment on receipt of sums handed over to him in partial satisfaction of the decree. The judgment-debtors were no doubt ultimately unable to carry cut their engagement; but this does not justify the conclusion that they should forfeit the sums they paid. In these circumstances we hold that the proper order to make is to allow the appeal and to restore the order of the Court of first instance. There will be no order for costs either here or in the Court of the District Judge.