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Khyali Ram Etc. Vs. Mast Ram Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberEx. Second Appeal No. 1 of 1967
Judge
Reported inAIR1977HP41
ActsCode of Civil Procedure (CPC) , 1908 - Section 144; ;Punjab Village Common Land (Regulation) Act, 1961 - Section 2
AppellantKhyali Ram Etc.
RespondentMast Ram Etc.
Appellant Advocate O.P. Sharma, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionAppeal dismissed
Cases ReferredLal Bhagwant Singh v. Sri Kishen Das
Excerpt:
- .....consequential relief. this suit was filed by them in a representative capacity on 16-10-1952. the suit was decreed on 18-8-1953. the decree-holders took out execution proceedings on 4-8-1960. the judgment-debtor also filed objections under section 47, civil procedure code which were dismissed and in consequence of the execution possession of the land was delivered as also the costs amounting to rs. 534.77 were recovered from the judgment-debtor and paid to the decree-holder. the judgment-debtor went in appeal to the court of the district judge against the dismissal of his objection petition which was dismissed on 1-5-1961. before the district judge during the course of arguments an objection was taken by the judgment-debtor that the punjab village common land (regulations) act 1961.....
Judgment:

C.R. Thakur, J.

1. This execution second appeal has got a chequered history. Subedar Mast Ram and others fileda suit for declaration to the effect that the land comprised in Khasra No. 1346/3 was the Shamilat Tikka land of the residents of village Larha, in tehsil Hamirpur and that Khyali Ram had taken unlawful possession of the same and they, therefore, prayed for possession of the same as a consequential relief. This suit was filed by them in a representative capacity on 16-10-1952. The suit was decreed on 18-8-1953. The decree-holders took out execution proceedings on 4-8-1960. The judgment-debtor also filed objections under Section 47, Civil Procedure Code which were dismissed and in consequence of the execution possession of the land was delivered as also the costs amounting to Rs. 534.77 were recovered from the judgment-debtor and paid to the decree-holder. The judgment-debtor went in appeal to the court of the District Judge against the dismissal of his objection petition which was dismissed on 1-5-1961. Before the District Judge during the course of arguments an objection was taken by the judgment-debtor that the Punjab Village Common Land (Regulations) Act 1961 which had come into force with effect from 22-4-1961 had vested the land of which the possession had been delivered to the decree-holder in the Pan-chayat which alone could enforce the decree against the judgment-debtor. This objection, however, did not find favour with the District Judge who dismissed the appeal on 11-6-1961. The judgment-debtor went in second appeal to the High Court of Punjab. The High Court by its order, dated 22-2-1964 allowed the appeal holding that in view of the provisions of the Act of 1961 the Shamilat Tikka land, which had been declared to be Shamilat Deh by virtue of the insertion of Clause (g) of Section 2 of the Act of 1961 had vested in the Panchayat and, therefore, the proprietors had ceased to have interest in it and as such the decree-holder cannot claim possession of the land and it was the Panchayat alone which could do so and thus the decree had become inexe-cutable in so far as the proprietors were concerned and it had become infructuous. It appears that after the decision of the High Court the possession of the land in dispute was restored to the judgment-debtor whether on his application or otherwise because there is nothing on the record to indicate nor the appellant has disclosed the facts in his petition or in the grounds of appeal.

2. After the possession was delivered back to the judgment-debtor he filed another application under Section 47 C. P. C. read with Ss. 144 and 151, C. P. C. for the refund of Rs. 534-77 which had been realised by the decree-holders from him as the costs of the suit. Further in that application he had made a prayer for restitution of an amount of Rs. 6,000/- on account of damages for the trees and the crops which were standing there on the land at the time when the possession was delivered to the decree-holders Mast Ram and others.

3. This petition was opposed. The executing court dismissed the application for restitution and thereafter the judgment-debtor filed two appeals, Nos. 44 and 45 of 1965 in the court of the District Judge. Appeal No. 44 related to the refund of costs realised by the decree-holders from him while appeal No. 45 related to the dismissal of the application regarding his claim for damages. Both these appeals were dismissed by the learned District Judge by his judgment, dated 7-1-1966.

4. The judgment-debtor thereafter preferred an appeal before the Punjab High Court on 29-4-1966, which appeal after the re-organisation of the erstwhile State of Punjab was transferred to the Judicial Commissioner's Court and then to the Delhi High Court (Himachal Bench) and which has now come up before this Court. The case came up for hearing before one of us sitting singly, and because of the importance of the questions involved referred the case for decision to a larger Bench. The learned single Judge while referring the case observed as:

'A question arises whether the expression 'order' used therein (Section 144) refers to an order which is passed in execution of a decree. If in the present case it is held that it was the decree which was executed and that the said decree was neither varied nor reversed by the High Court, perhaps relief cannot be granted under Section 144, That apart,can it be stated that Section 144 does notcontemplate a party against whom a competent court has held that its very rightof execution of the decree has been takenaway or has been nullified as a result ofa piece of legislation which comes intooperation during the execution stage Ifsuch a party is not contemplated, then thequestion will arise whether Section 144can be availed of to get restitution. Inthat contingency, perhaps the very delivery of possession back to the judgment-debtor may be rendered invalid, althoughthat question is not directly in issue inthe present dispute.'

Before this Court the learned counsel forthe appellant argued the case only in respect of the refund of costs. It is a common ground between the parties that thedecree became inexecutable by operationof law, whereunder the Shamilat Dehland stood vested in the Panchayat. Thelearned counsel for the appellant contendsthat the appellant is entitled to the refundof the costs because the decree passed inthe suit in the year 1953 stood varied byoperation of law, inasmuch as the Panchayat had become the owner of the property and it was only the Panchayatwhich could execute the decree and recover the costs but Mast Ram and othershad wrongly recovered the costs althoughthey had delivered back the possession ofthe land. In view of the fact that interms of Section 144, Civil Procedure Codewhen the decree or order is varied or reversed he was entitled to the refund ofthe costs by way of restitution and in support of his submission he has relied onUnion of India v. Ummer Salt, (AIR 1969Mad 212), Chittoorri Venkataraju v.Chekka Suryanarayana, (AIR 1943 Mad248) and Miss Devi Ramchand Waswani v.S. V. Bastikar, (AIR 1968 Bom 57).

Section 144, Civil Procedure Code reads as follows:

'(1) Where and in so far as a decree (or an order) 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 order) 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.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).'

From the reading of this section it would be apparent that the object of this section 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. This section only lays down the procedure for the restitution of the benefit that may have been derived by a party under the decree and which may have been subsequently varied or reversed. In the instant case there is no dispute that Mast Ram and others did realise the costs although at the time of execution of the decree they had ceased to have any interest in the land and the decree qua them had become inexecutable and that right had vested in the panchayat which alone could execute the decree for possession as also for recovery of costs. To my mind, there can be no dispute with regard to the fact that the decree was in any way varied or reversed by the court of first instance or by any appellate court The decree became in-executable at the instance of Mast Ram and others because of the fact that the land under the Punjab Village Common Land (Regulations) Act 1961 had vested in the Panchayat right from 1954 under the Act of 1961. But this would not mean that the decree had ceased to exist. The decree was quite alive and could be executed, if not by Mast Ram and others but by the Panchayat, who so to say had stepped into the shoes of the original decree-holders. If that is the position, in my opinion, it cannot be said that the decree had in any way been varied or reversed. There was no change in the decree except that for Mast Ram and others, decree-holders, the Panchayat became the decree-holder. In Union of India's case (supra) a decree had been passed with costs in favour of the appellant by the Subordinate Judge on 16th April 1960, On an appeal preferred by the respondents, the appeal was allowed and that decree was set aside. Before the disposal of this appeal, pursuant to the decree in the suit, the respondents had paid the costs to the Union of India. After the disposal of the appeal, the respondents filed a petition under Order 21, Rule 11 and Section 144, Civil Procedure Code for recovery of a sum of Rs. 3,528/-, by way of restitution, being the costs paid by them to the Union of India with interest That application was allowed by the learned Subordinate Judge and against that a civil miscellaneous petition had been filed by the Union of India and at the same time the Union of India filed an appeal because it was not sure whether an appeal would be maintainable and, therefore, it filed a civil revision petition also. In these circumstances it was, therefore, held while disposing of the, revison as also the appeal that the right to get restitution is a right created by the statute, flowing as a consequence of the decree being reversed by the appellate Court. Whether there is any direction expressly authorising the successful party in the appeal to claim restitution or not, by the very fact of the success in the appeal, the successful party acquires a right in terms of Section 144 C. P. Code. The Court, therefore, allowed restitution of the costs along with interest thereon. This authority does not advance the case of the appellant because that was a case between the same parties and the decree passed by the court of the first instance had been reversed in appeal and it was in these circumstances that the benefit derived by the appellant during the pendency of the appeal in execution of the decree passed by the court of first instance could be recalled by way of restitution as contemplated under Section 144, Civil Procedure Code.

5. The second authority, Chittoori Venkataraju (AIR 1943 Mad 248) (supra) was a case in which in execution of a decree the appellants attached some immovable properties and objections under Order 21, Rule 58, Civil Procedure Code were taken by the receiver to the estate of Pydah Venkatachalapathi Garu but the same were dismissed with costs and the receiver who was the respondent in the appeal paid their costs to the appellants. However, he filed a suit under Order 21, Rule 63, Civil Procedure Code which was decreed in his favour and the appeal by the present appellants Chittoori Venkataraju and others failed. The decree in the suit which was confirmed by the appellate Court set aside the orders on the claim petition and gave the respondent the declaration of title for which he prayed and the costs of the suits. No mention, however, was made in the decree of the costs incurred in the claim petition. The respondent, however, filed a separate petition out of which an appeal had arisen for restitution of the costs paid by him to the appellants in obedience to the orders passed on the claim petition. The Subordinate Judge allowed the peti- tion observing that Section 144, Civil procedure Code was not confined to cases where the orders are reversed only in further stages like appeal etc., but it applies to any reversal and that the petitioner would be entitled to restitution the moment his suit succeeds. Dismissing the appeal against that order the High Court held that Section 144 does not provide that for an order of restitution to be made the decree must have been varied or reversed in any particular form of proceedings or by any particular Court. Section 144 is not confined to cases where the orders are reversed on appeal. But this authority also cannot be taken as a guide for the decision of the present case in which the decree has neither been varied nor reversed either by the court of first instance or any appellate court or in any other proceedings by any other court so as to attract the applicability of Section 144, Civil Procedure Code.

6. The third case Miss Devi Ram-chand Waswani (AIR 1968 Bom 57) (supra) also lays down a similar principle that Section 144 provides for every case of reversal or variation including reversal by Supreme Court, by same Court in same proceedings or by different Court in different proceedings.

7. In these circumstances these authorities have got no bearing on the facts of the present case which is a case of its own nature and in which there is no variation or reversal of the decree. The decree is quite alive and could be executed by the Panchayat instead of Mast Ram and others who had originally obtained the decree. The decree not only being alive but was quite valid and if the respondents who had ceased to have any interest in the decree had realised any amount despite the fact that they had ceased to be the decree-holders then it cannot be said that there was any reversal or variation of the decree whereby they had got this advantage and which advantage can be restored back to the present appellant under the provisions of Section 144, Civil Procedure Code, Mast Ram and others were so to say strangers who had no interest in the decree and if they had obtained this advantage the only remedy open, in my opinion, is to realise the costs if the appellant has got any right by way of a separate suit. In fact the appellant had also no right to claim the costs because that is a matter between the Panchayat on the one hand and Mast Ram and others on the other. In so far as the decree is concerned that is alive and that is against the present appellant who cannot object to the delivery of the possession to the Panchayat or to pay the costs if they had not paid to Mast Ram and others to the Panchayat.

8. Learned counsel for the respondents also cited a few authorities to substantiate his viewpoint that by virtue of enforcement of the Act of 1961 by which the land had vested in the .Panchayat did not render the decree invalid or void. The decree was quite alive and that there was no variation or reversal of the decree which could only be by court of the first instance or by the appellate court or in any other proceeding. The first authority is Kishen Sahai v. Bakhtawar Singh, ((1898) ILR 20 All 237). In this case the plaintiffs were occupancy tenants of the defendants in respect of some land. The plaintiffs used to pay their rent in kind. The defendant sued them for enhancement of rent and got a decree on the 13th of Sept. 1889. This decree was set aside by the Board of Revenue on appeal on the 14th of October 1890. Between the 13th of September 1889 and the 14th of October, 1890, the defendant sued the plaintiffs for rent at the enhanced rate allowed by the decree of the 13th of September, 1889, and got a decree for 1,920-2-0 on the 18th June, 1890. Notwithstanding the order of the Board of Revenue of the 14th of October, 1890, the defendant executed his decree for rent and realized Rs. 1,010/-. The plaintiffs sued for cancelment of the decree of the 18th of June, 1890, and the case went up to the Board of Revenue on appeal. The Board held that the decree of the 18th June, 1890, could not be cancelled by them and directed the plaintiffs to seek their remedy in the Civil Court. The plaintiffs accordingly brought a suit for a declaration that the decree of the 18th of June, was incapable of execution; but their suit was dismissed by the Subordinate Judge on the 28th of Sept., 1893. The plaintiffs thereupon brought another suit in which they claimed to recover the amount realized in execution of the decree of the 18th of June, 1890, on the allegation that the said decree had been superseded by the order of the Board of Revenue of 14-10-1890. The defendant pleaded, inter alia, that the decree in question was still subsisting and that therefore, the defendant (plaintiff 7) could not recover any thing realized under it. The court of first instance dismissed the suit holding that the decree in favour of the defendant at the enhanced rate had not been set aside. On an appeal by the plaintiffs the lower appellate court found that the main decree of the 13th of September, 1889, being reversed by the Board of Revenue and that being the basis of the decree of the 18th of June, 1890, this latter decree must be taken as superseded and the court accordingly set aside the decree of the first instance and made an order of remand. From this order the defendant appealed to the High Court. It was held by the High Court:

'It is quite plain to our minds that if there had been no order made at all for a commutation of the rent in kind into a fixed money rent, but a Court of Revenue had erroneously made a decree for a money rent and that decree was executed and was not reversed in appeal or superseded by a Court competent to reverse it, a tenant whose goods had been sold in execution of such decree for rent or who had satisfied decree by payment could not recover so long as the decree for rent was not reversed or superseded by a Court competent in that respect. The defendants had a remedy against this decree for rent, and that was by appealing. Of that remedy they did not avail themselves. In our opinion, as the decree of the Court of Revenue stands unreversed and not superseded by a competent Court, this suit must fail.'

From this judgment it would, therefore, appear that the decree must be varied and reversed by a competent court of jurisdiction and that the suit must be between the same parties.

9. The second authority is T. S. Swaminathan Odayur v. Official Receiver of West Tanjore, (AIR 1957 SC 577). The facts are that in a suit for partition of properties belonging to joint Hindu family, defendant 3 was adjudicated insolvent under the preliminary decree and thereupon his assets including his share in partition vested in the Official Receiver. The final decree for partition passed by the High Court in 1938 directed the Official Receiver who represented defendant 3 to pay to defendant 6 (appellant before the Supreme Court) a certain sum with interest with a view to equalise their shares on partition and he was further directed to sell portions of the insolvent's estate in order to pay off the amount so decreed. In the meanwhile the Official Receiver had sold certain properties of the insolvent and realised certain amounts, T, a creditor of the insolvent who had obtained a decree against the latter applied to the executing Court for an order on the Official Receiver to bring into Court for payment to him a certain amount out of the sale proceeds. The appellant also applied for execution of the partition decree claiming that he was entitled to the entire sale proceeds as the partition decree had created a charge in his favour. These applications were heard together to which the Official Receiver was made a party. The executing Court held that a partition decree of 1938 had created a charge in favour of the appellant and that he was entitled to the sale proceeds in preference to T. The Official Receiver accordingly deposited Ra. 5,200/- in Sourt to the credit of the appellant. Thereafter the Official Receiver paid various sums to the appellant in respect of the amount due to him under the decree. On T's appeal to the High Court against the decision of the executing Court the High Court held on 5-11-1943 that there was no charge in favour of the appellant under the decree. In view of this decision the Official Recevier applied under Sections 144 and 151, Civil Procedure Code to the executing Court for an order that the sum deposited by him in Court to the credit of the appellant and the sums paid to the appellant might be paid back to him. It was, therefore held:

'That the partition decree of 1938 created by necessary implication a lien or charge on the properties falling to the share of defendant 3 in respect of the sum decreed by reason of provision for owelty having been made in favour of the appellant by way of equalisation of partition. The respondent Official Receiver in whom the property of defendant 3 had vested having paid the monies to the appellant in pursuance of the directions in the decree was not entitled to claim back those monies apart from the question whether Section 144 read with Section 151 was at all applicable to the case.

10. The third authority is Lal Bhagwant Singh v. Sri Kishen Das, (AIR 1953 SC 136) and the principle laid down therein is:

'The doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interests of justice.'

This authority therefore clearly shows that the doctrine of restitution can only be availed of in case there is reversal or variation of the judgment under which a party has received the benefit of the erroneous judgment and decree which have subsequently been set aside or varied. If that is so the parties can be relegated to the status quo ante. In the instant case as would be apparent the decree was passed in the year 1953 when there was 10 law vesting the land in the Panchayat. This law was enacted only in the year 1961 although it was given retrospective effect from 1954. By operation of law it cannot be said that the decree had become invalid or void or it ceased to exist. The effect of this legislation was only that the decree-holders, i.e., Mast Ram and others could not execute the decree because they had ceased to have any interest in the land. But by that it could not be said that the present appellant was entitled to the refund of the costs or the return of the possession of the land because it was a matter between Mast Ram and others on the one hand and the Panchayat on the other. If the Panchayat wanted to execute the decree it had got the right to do so and the present appellant could not resist that execution as the decree was quite alive and it had not made even a slightest change in the decree so as to benefit the appellant.

11. Therefore, the position that emerges is that this decree which was executed by Mast Ram and others was not reversed or varied at any stage of the proceedings. The only thing was that the decree became inexecutable, by operation of law which does not mean that the decree had become non est. The decree was valid. However, it was inexecutable at the instance of Mast Ram and others. Therefore, if Mast Ram and others had derived any benefit under a valid decree which was inexecutable at their instance the appellant could not claim back the costs by restitution application as he had become so to say a stranger and the decree was alive which could be executed, both for possession as also for costs by the Panchayat. Therefore, it cannot be said that the decree had been varied or reversed so as to claim restitution of the costs by the appellant from a person who had ceased to have any interest under the decree. In these circumstances the appeal, in my opinion, deserves to be dismissed and the same is accordingly dismissed.

12. In view of the chequered history and the long period over which these proceedings have extended it would ba proper to leave the parties to bear their own costs.

D.B. Lal, J.

I agree.


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