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Asutosh Goswami and ors. Vs. Upendra Prosad Mitra and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.17
AppellantAsutosh Goswami and ors.
RespondentUpendra Prosad Mitra and anr.
Cases ReferredForester v. Secretary of State
Excerpt:
civil procedure code (act v of 1908), section 144 - restitution, principles governing--judgment reversed, effect of, on judgments consequential thereto--claim for restitution--limitation, starting point of--interest. - .....prosad mitra are concerned, and any sums belonging to them which may have been taken away by the decree-holders under the order of the court below must be refun led at once.' to make this order intelligible, it is necessary to state what had happened in the court below in the interval. on the 5th july 1909, while the application for execution made on the 6th january 1909 was still' under consideration, the decree holders made a fresh application for execution, with a view to attach funds in court which stood to the credit of two of the judgment-debtors. the decree-holders desired that this application should be consolidated with the previous application which was for execution by attachment and sale of moveables owned by the judgment-debtors. the judgment debtors objected to the.....
Judgment:

1. This appeal is directed against an order for restitution. The facts material for the determination of the questions in controversy are not in dispute and may be briefly set out. On the 11th December 1899 the appellants, members of a family of Goswamis, obtained a decree for money against a large number of defendants, members of a family of Mitras. Execution was taken out from time to time, but practically to no purpose. On the 6th January 1909 an application for execution was made, more than three years after the date of the previous application. Objection was thereupon taken on the 3rd February 1909 by the judgment-debtors that the application was barred by limitation. This objection was registered and numbered as a separate proceeding, and was overruled on the 5th August 1909. Five of the judgment-debtors then appealed to this Court on the 10th May 1910. The appeal was decreed on the 9th January 1914 as regards four of the appellants and was dismissed as regards the other. This Court held that the bar of limitation was available to the judgment-debtors, except to the one who had made an acknowledgment within the meaning of Section 19 of the Limitation Act, and proceeded to give a direction in the decree for restitution in the following terms: 'The result is that this appeal is allowed in so far as the appellants other than Jogendra Prosad Mitra are concerned, and any sums belonging to them which may have been taken away by the decree-holders under the order of the Court below must be refun led at once.' To make this order intelligible, it is necessary to state what had happened in the Court below in the interval. On the 5th July 1909, while the application for execution made on the 6th January 1909 was still' under consideration, the decree holders made a fresh application for execution, with a view to attach funds in Court which stood to the credit of two of the judgment-debtors. The decree-holders desired that this application should be consolidated with the previous application which was for execution by attachment and sale of moveables owned by the judgment-debtors. The judgment debtors objected to the amalgamation of the two applications, and on the authority of the decision in Sheikh Ahmed Chowdhry v. Shahzada Khatoon 7 C.L.R. 537, the Court directed the subsequent application to be registered and numbered as a separate proceeding. There were thus three proceedings on the records of the Court, namely, the two applications for execution made on the 6th January and 5th July 1909, respectively, and the objection case initiated on the 3rd February 1909. The objection case raised a question which went to the root of both the applications for execution, because if the objection prevailed, no relief could be granted to the decree-holders on the basis of either application. This was evidently in view when the Court directed on the 3lst July and 2nd August 1909 that the second application was to be put up along with the first application and the objection case. The objection case, as we have seen, was dismissed on the 5th August 1909. On that date we find it recorded, in the order sheet of the case on the second application, that as the objection had been disallowed after contest, the decree-holders were to take steps. The decree-holders thereupon applied for payment of the fund in deposit in Court to the credit of two of the judgment-debtors. There was an ad interim stay of proceedings under the orders of the District Judge passed at the instance of the judgment-debtors; but the stay order was ultimately withdrawn on the 25th September 1909, as the judgment-debtors had failed to show that the circumstances of the decree-holders were such that there would be any difficulty in obtaining restitution, should the judgment-debtors ultimately succeed in their appeal in the objection case. Here it may be observed parenthetically that the judgment-debtors had lodged an appeal before the District Judge against the order in the objection case; it ultimately transpired, however, that the appeal lay to the High Court, because the decree, though for a smaller sum than Rs. 5,000, had been made in a suit valued at above Rs. 5,000; it was for this reason that the appeal in the objection case was not lodged in this Court till the 10th May (sic). To return to the narrative of events in the Court below, we find that after the stay order had been withdrawn by the District Judge on the 25th September 1909, the Subordinate Judge on that very day directed payment to the decree-holders of the fund in Court. No appeal was preferred against this payment order; none, indeed, could have been profitably preferred, for payment could be resisted only if the decree was barred by limitation, and that was the very point involved in the appeal against the order in the objection case. After the appeal in the objection case had been decreed in this Court, the two judgment-debtors, whose deposit had been taken away by the decree-holders, applied to the Court below for restitution on the 30th May 1914. The decree-holders objected substantially on six grounds, namely, first, that the sum in question was not covered by the direction for restitution made by this Court in the appeal against the order in the objection case; secondly, that restitution should not be granted, as no appeal had been preferred against the payment order, and what had been reversed by this Court was not the payment order but the determination in the objection case that the decree Was not barred by limitation; thirdly, that as the effect of Section 28 of the Limitation Act was merely to bar the remedy and not to extinguish the right, no order for restitution could justly be made; fourthly, that the application for restitution was barred by limitation; fifthly, that the fund, though it stood in the name of two of the judgment-debtors, was not their exclusive property and belonged, partly at least, if not entirely, to Jogendra Prosad Mitra, against whom the application for execution was not barred by limitation; and sixthly, that the claim for interest was unjust and excessive. The Subordinate Judge held that the sum claimed by way of restitution was covered by the order made by this Court, and, accordingly, directed the decree-holders to refund the sum withdrawn by them together with interest at 12 per cent. per annum and costs. We are now invited by the decree holders to consider the propriety of this order.

2. The first point for consideration is, whether the sum withdrawn by the decree-holders is covered by the direction given by this Court in the appeal in the objection case. We are of opinion that the direction, strictly construed, does not cover the money in controversy. The decretal order drawn up in this Court removes any ambiguity which may be supposed to be involved in the judgment; the decree directs explicitly that the order of the Court below, dated the 5th August 1909, directing execution to proceed be and is set aside, and further orders that the respondents-decree-holders do refund to the appellants other than Jogendra Prosad Mitra, (whose appeal was dismissed), any sums belonging to them which might have been taken away under the said order of the Court below. The decree-holders argue that this refers in terms to sums, if any, taken away by them under the order of the 5th August 1909 and that the sum now in question cannot, by any stretch of language, be deemed to have been taken away by them under that order. This is a reasonable contention; the only proceeding then before this Court was the objection case, and it would not be right to put an extended interpretation upon our order, so as to prejudice the decree holders, without opportunity afforded to them to show cause why restitution should not be granted in respect of sums taken away by them in a proceeding which was, in form at least, never brought up to this Court. We hold accordingly that the direction previously given by this Court does not conclude the matter which must, consequently, be determined on the merits.

3. The second point for consideration is, whether restitution may be claimed by the judgment-debtors, although they did not appeal against the payment order. The decree-holders contend in substance that restitution should not be granted, as the payment order has never been formally reversed on appeal. We are of opinion that there is no substance in this technical objection. It is a general rule that upon the reversal of a judgment, order or decree, all connected or dependent judgments or orders fall with it, specially judgments subsequently entered and dependent thereupon; but this rule does not operate by implication to set aside a distinct and independent judgment or proceeding, though it forms a part of the same litigation. Illustrations of the application of this doctrine may be found in a variety of cases in the reports: Chicago B. & V.R. Co. v. Fosdick (1882) 106 U.S. 47 : 27 Law Ed. 47 : 16 Otto. 47; Butler v. Eaton (1890) 141 U.S. 240 : 35 Law. Ed. 713. Whether a judgment or order is a dependent judgment or order, that is, merely ancillary and accessory to another judgment so as to share its fate and fall to the ground along with it, must be determined from the nature and scope of the proceedings, and may, as some of the cases in the books show, give rise to questions of considerable nicety and consequent divergence of judicial opinion: Shama Purshad Roy v. Hurro Purshad Roy 10 M.I.A. 203 : 3 W.R. (P.C.) 11 : 2 Suth. P.C.J. 103 : 19 E.R. 948; Jogesh Chunder Dutt v. Kali Churn Dutt 3 C. 30 : 1 Ind. Dec. (N.S.) 611. In the case before us the payment order was manifestly dependent upon the decision that the decree was not barred by limitation and was consequential thereupon. This is indicated by the substance as well as the form of the proceeding. No payment order could be made till it had been decided that the decree was still alive and capable of execution. This was expressly recognised when, on the 2nd August 1909, the application for execution by way of attachment of the deposit was ordered to be put up after the disposal of the objection case, as also when, on the 5th August 1909, the decree-holders were directed to take steps as objection had been disallowed after contest. That this was the true position was also clearly understood by the parties, when on the 25th September 1909, the decree-holders induced the District Judge to revoke the stay order on the ground that there would be no difficulty in the way of restitution, if the appeal already preferred in the objection case ultimately proved successful. In these circumstances, we may legitimately hold that the payment order was in essence ancillary to the decision in the objection case, and that the cancellation of the order in the objection case by this Court as the Court of appeal involved by necessary implication a cancellation of the consequential payment order. In this view, the judgment-debtors are entitled to restitution, even though they did not formally appeal against the payment order.

4. The third point for consideration is, whether the judgment-debtors are entitled in justice, equity and good conscience to invoke the inherent power of the Court to grant them relief by way of restitution, when it is borne in mind that they have obtained a reversal of the order for execution solely on the ground of limitation. The argument of the decree-holders in substance is that inasmuch as, under Section 28 of the Limitation Act, their remedy alone has been barred though their right as execution creditors has not been extinguished [Gajadhar Mahto v. Raghubar Gope 12 C.W.N. 60], they should be allowed to retain the money which they may have received under an erroneous order of the Court. Now, it may be conceded that, in cases not comprehended strictly within the letter of Section 144 of the Civil Procedure Code (which makes grant of restitution obligatory in certain circumstances), restitution is not a matter of right but depends upon the sound discretion of the Court and will be ordered only when the justice of the case calls for it; but the test of what is just must be determined with reference to the imperative requirements of the law applicable to the subject-matter. Section 3 of the Limitation Act requires that every application made after the period prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence. An obligation is thus imposed upon the Court, to dismiss an application for execution of a decree, if the application is barred by limitation: [Mahomed Hossein v. Purundur Mahto 11 C. 287 : 5 Ind. Dec. (N.S.) 951, Ramu Rai v. Dayal Singh 16 A. 390 : A.W.N. (1894) 131 : 8 Ind. Dec. (N.S.) 254]. We are not concerned with the policy of the Legislature as indicated by Section 3; the essential point is that the provision is mandatory, as explained by the Full Bench in Balaram Gantia v. Mangta Das 6 C.L.J. 237 : 34 C. 941 : 11 C.W.N. 959. It would consequently not be right for the Court to withhold relief by way of restitution, when the sum has been paid out on the strength of an erroneous decision upon a point of limitation. The principle on which restitution is granted accordingly applies quite as much to this case as to any other ; that principle is lucidly stated by Lord Cairns in the decision of the Judicial Committee in Rodger v. Comptoir D'Escompte de Paris 7 Moor. P.C. (N.S.) 314 : 3 P.C. 465 at p 475 : 40 L.J.P.C. 4 : 24 L.T. 111 : 19 W.R. 449 : 17 E.R. 120: ' 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 if the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.' The term 'injury' is here used, not in a popular but in a legal sense, that is, an infraction of a juridical right. The principle that the Court will not permit an injustice to be done by reason of an erroneous order made by it and will, when that erroneous order has been reversed, restore the parties to the position which they would otherwise have occupied, is of a fundamental character and has been applied in a variety of instances in England, in the United States and in this country. Reference may be made to Eyre v. Woodfine Cro. Eliz. 278 : 78 E.R. 533; Western v. Creswick (1960) 4 Moor 161 : 8 Salk 214 : 91 E.R. 785; R. v. Leaver (1692) 2 Salk 587 : 91 E.R 494; U.S. Bank v. Washington Bank (1832) 6 Pete 8 : Law. Ed. 299; Esc parte Morris (1869) 9 Wallis 605 : 19 Law Ed 799 ; Northwestern Fuel Co. v. Brock (1890) 139 U.S. 216 : 35 Law Ed. 51; Beni Madho v. Pran Singh 14 Ind. Cas. 456 : 15 C.L.J. 187; Raghu Singh v. Shew Prosad Rai 17 Ind Cas. 121 : 16 C.L.J. 135. We are not unmindful that in Safaraddi v. Durga Prosad Sen 16 Ind. Cas. 966 : 6 C.L.J. 83 a narrower test was suggested for determination of the right of a claimant for restitution, namely, whether be could have obtained the same relief by the institution of a suit, which, be it noticed, is not permissible under Section 144 (2) in oases covered by Section 144(1) of the Civil Procedure Code: Mullaseri Gopala Menon v. Krisheki Kori Knath Manavikraman 13 Ind. Cas. 179 : 22 M.L.J. 146 : O.M.L.T. 568. It is sufficient to observe that a broader view of the principle whereon restitution is based was taken by the Judicial Committee in the case mentioned. It may also be observed that the decision in Safaraddi v. Durga Prosad Singh 16 Ind. Cas. 966 : 6 C.L.J. 83 is founded on a view of the relative rights of a landlord and a transferee of a portion of non-transferable occupancy holding, which has subsequently been negatived by the Fall Bench in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 20 C.L.J. 52 : 42 C. 172 : 18 C.W.N. 971. We also find that notwithstanding the decision in Safaraddi v. Durga Prosad Singh 16 Ind. Cas. 966 : 6 C.L.J. 83 the rule formulated in Beni Madho Singh v. Pran Singh 14 Ind. Cas. 456 : 15 C.L.J. 187 was followed in Amirannessa Chowdhurain v. Karimannessa Chowdhurain 22 Ind. Cas. 839 : 18 C.W.N. 1299. We hold accordingly that the judgment-debtors are not precluded from claiming restitution merely because they have succeeded on the ground of limitation.

5. The fourth point for consideration is, whether the bar of limitation is applicable to the application by the judgment-debtors for restitution. It is difficult to appreciate how a question of limitation can possibly arise in the present proceedings. The order of this Court in appeal was made on the 9th January 1914; the payment order must be deemed to have been in full operation up to that date and was superseded only then. The judgment-debtors applied for restitution on the 21st May 1914. The only Article of the Limitation Act which may possibly apply, if any rule of limitation is at all deemed applicable, is Article 181, which provides that all applications for which no period of limitation is provided elsewhere in the Schedule must be made within three years from the date when the right to apply accrues [Harish Chandra Shaha v. Chandra Mohan Das 28 C. 113 (30) 8 A. 545 : A.W.N. (1886) 178 : 5 Ind. Dec. (N.S.) 272; Rickett v. Rameswar Malta 28 C. 109; Nand Ram v. Sita Ram 8 A. 545 : A.W.N. (1886) 178 : 5 Ind. Dec. (N.S.) 272; Kurupam v. Sadasiva 10 M. 66 : 3 Ind. Dec. (N.S ) 797]. We are not unmindful that a different rule is possibly involved in the decision of this Court in Dino Math Das v. Jogendra Nath Bhoumick 26 Ind. Cas. 890 : 19 C.W.N. 1167. In that case, the decree-holder purchased the property of the judgment-debtor in execution of his decree in 1900 and took possession of the property sold in November 1900. Proceedings were thereupon instituted by the judgment-debtor to have the sale set aside. The order for cancellation of the sale was not made till the 29th June 1907 and the property was not restored to the Judgment-debtor till June 1909. On the 2nd April 1910 the representative of the, judgment-debtor applied to the Court for an order upon the decree-holder auction-purchaser to make restitution of the profits received by him during the time that he was in possession. This Court held that the applicant was entitled to profits only for a period of three years antecedent to the date of the application, and accordingly, made an order for restitution of the profits realised between the 2nd April 1907 and June 1908. Reference was made to the decision in Safaraddi v. Durga 16 Ind. Cas. 966 : 6 C.L.J. 83 and it was assumed that as Article 109 applies the three years' rule to a suit for mesne profits, the applicant was restricted to his remedy by way of restitution for a similar period This view is clearly inconsistent with the long series of decisions we have mentioned, which hold that Article 181 is applicable. It is further plain that the view taken in Dino Math Das v. Jogendra Nath Bhoumick 26 Ind. Cas. 890 : 19 C.W.N. 1167 must inevitably lead to grave injustice. No application for restitution is possible till the erroneous decree or order has been set aside or superseded. It is difficult to see on what principle time may be deemed to run against the judgment debtor while the erroneous order is still in force; on the other hand, the judgment of Sir Barnes Peacock, C.J., in Joy Kurun Lal v. Ranee Asmudk Kooer 5 W.R. 125 shows that the right of action does not accrue to the judgment-debtor before the erroneous decree has been superseded, and time runs against him only from that date, even if he institutes a regular suit for recovery of the (sic). The same view is supported by the decisions in Musammat Rani Surno Moyee v. Shooshee Mokhee Burmonia 12 M.I.A. 244 : 11 W.R. (P.C.) 5 : 2 B.L.R. (P.C.) 10 : 2 Suth. P.C.J. 173 : 2 Sar. P.C.J. 424 : 20 E.R. 331; Dhunput Singh v. Saraswati Misrain 19 C. 267 : 9 Ind. Dec. (N.S.) 623, Rangayya Appa Rao v. Bobba Sriramulu 27 M. 143 (P.C.) : 8 C.W.N. 162 : 14 M.L.J. 1 : 6 Bom. L.R. 241 : 31 I.A. 17 : 8 Sar. P.C.J. 617 and Holloway v. Guneshwar Singh 3 C.L.J. 182, which will be found reviewed in Raghu Singh v. Sheo Prosad Rai 17 Ind Cas. 121 : 16 C.L.J. 135. It is interesting to note that a similar view has bean repeatedly adopted in the Courts of the United States, where it has been ruled that when a person receives money under a decree which is afterwards reversed on error, the Statute of Limitations commences to run in his favour only from the reversal: Bank of Washington v. Neale (1835) 4 Cranch. C.C. 627 ; Crocker v. Clements (1853) 23 Ala. 296; Florence v. Louisville (1903) 138 Ala. 588 : 100 Am. St. Rep. 50 : 36 South 456. We feel no doubt whatever that, in the case before us, grave injustice would result if we were constrained to hold that the claim for restitution was barred, because the decree-holders had managed, under an erroneous decision on a question of limitation, to take away the money of the judgment-debtors and to retain it for a longer term than three years, by reason of delay in the disposal of the appeal by this Court.

6. The fifth point for consideration is, whether the decree-holders are entitled to have an enquiry as to the ownership of the fund which was attached in execution of their decree. We are clearly of opinion that the matter must be investigated. That the money stood in the name of two of the judgment-debtors is by no means conclusive; but such enquiry will be made only after the money has been brought back into Court pursuant to the directions we are about to give.

7. The sixth point for consideration, is, whether restitution must be made of the sum withdrawn, together with interest thereon. We are of opinion that interest must be paid by the decree-holders at the rate of 6 per cent. per annum from the date of withdrawal to the date of repayment into Court: Rodger v. Comptoir D'Escompte de Paris 7 Moor. P.C. (N.S.) 314 : 3 P.C. 465 at p 475 : 40 L.J.P.C. 4 : 24 L.T. 111 : 19 W.R. 449 : 17 E.R. 120; Merchant Banking Co. of London v. Maud (1875) 18 Eq. 659 : 43 L.J. Ch. 861 : 22 W.R. 874; Imperial Mercantile Credit Association v. Coleman (1871) 6 Ch. App. 558 : 40 L.J. Ch. 262 : 24 L.T. 290 : 19 W.R 481; Forester v. Secretary of State 4 I.A. 137 : 3 C.161 : 3 Suth. P.C.J. 405 : 3 Sar. P.C.J. 717 : 1 P.R. 1877 : 1 Ind. Dec (N.S.) 692. The order of the Court below, which allows interest at 12 per cent., must accordingly be varied in this respect.

8. The result is that this appeal is allowed, and the order of the Subordinate Judge discharged. The decree-holders are hereby directed to bring back into Court, within one month from this date, Rs. 3,781-9-0 together with interest thereon at 6 per cent. per annum from the 25th September 1909, to the date of repayment into the Court. The sum so deposited will be invested in such manner as the Court may direct. The fund will be deemed to have been attached in execution of the decree of the decree-holders against Jogendra Prosad Mitra. The Court will then proceed to determine what portion of the fund, if any, is the property of Jogendra Prosad Mitra and the decree-holders will be at liberty to apply such portion only in satisfaction of their decree. To prevent possible dispute we may add that should it turn out on investigation that the fund did in whole or in part belong to Jogendra Prosad Mitra the decree-holders will be entitled to receive therefrom not merely the judgment-debt but also interest thereon at 6 per cent. per annum from the date of the decree till the date of realisation; credit will be allowed to the judgment-debtors for sums previously paid or realised in satisfaction of the decree. The Execution Case No. 93 of 1909 will stand revived, the order for satisfaction of the decree, made on the 25th September 1909, will stand cancelled, and the enquiry directed will be held in the execution case so restored. If the money is not brought into Court as directed, the Court below will proceed to realise the sum by execution from the decree-holders in the usual manner. There will be no order for costs either here or in the Court below in these proceedings; but as the Subordinate Judge made his order on a preliminary point, i.e., on the ground that the matter was concluded by our order of the 9th January 1914, we direct, under Section 13 of the Court Fees Act, that the amount paid as Court-fees on the memorandum of appeal be refunded to the appellants. In this view, it is unnecessary to determine whether Court-fees were payable ad valorem on the memorandum.


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