Shamuj All and other Vs. Kamalarma Bibi and others, 33 DLR (AD) (1981) 101

Case No: Civil Appeal No. 56 of 1980

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Dr. Rafiqur Rahman,,

Citation: 33 DLR (AD) (1981) 101

Case Year: 1981

Appellant: Shamuj All and other

Respondent: Kamalarma Bibi and others

Subject: Procedural Law,

Delivery Date: 1980-11-26

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain CJ
Fazle Munim J
Rasul Islam J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
 
Shamuj All and other
..............................Appellants
Vs.
Kamalarma Bibi and others
…………………...Respondent
 
Judgment
November 26, 1980.
 
Points decided in this case are—
Restitution under section 144 of the Civil Procedure Code is not an execution proceeding and an application for restitution is not an execution application but is an independent application.
A restitution application under section 144 is governed by the residuary article, namely article 181 of the Limitation Act.
Right to make an application under section 144 as stated in article 181 accrues on the date of the final decree of the appellate court.
 
Civil Procedure Code (V of 1908)
Under the Civil Procedure Code of 1882 restitution under section 583 of that Code was an execution proceeding.
 
Case Referred to-
Parmethwar Singh A.I.R, 1934 All. 626: Saraj Bhushan A.I.R. 1932 Cal -308; Hari Mohan Dalal, A.I.R 1947 Nag 239; Balmukund Marwari A.I.R. 1925 Pat.1. Somamndaram, A.I.R. 1917 Mad. 185; Venkatraraju, A.I.R. 1943 Mad. 248; Kurgodlgouda A.I.R. 1917 Bom 210; Hamidal, A.I.R. 1921 Bom 67; bhaunath,A.I.R. 1934 Pat. 246(2).
 
Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate, Instruc­ted by Abu Backkar, Advocate-on-Record. — For the Appellants.
Rafiqur Rahman, Senior Advocate, instructed by Zinnur Ahmed, Advocate-on-Record.—For the Respondent No. 1.
Ex-parte—Respondents No. 2-12.
Civil Appeal No. 56 of 1980.
(From the Judgement and order of the High Court Division dated July 24, 1979 passed in S.M.A. No. 45 of 197).
 
JUDGMENT

Shahabuddin Ahmed J.
 
This appeal by special leave call in question a judgment and order of the High Court Divison dated July 24, 1979 in S.M.A. No. 45 of 1970 reversing the judgment and order of the Subordinate Judge who on setting aside the judgment and order of the Trial Court held that an application for restitution under section 144 of the Civil Procedure Code is governed by Article 181 of Schedule 1 of the Limitation Act, 1908 and not by Article 182 of the laid Act. The High Court Division further held that even if Art. 181 applies to an applica­tion for restitutions the three years period of limitation provided thereunder will begin from the date of the final decree in second appeal and not from the date of the decree of the first appellate Court reversing that of the court of the first instance. In other words, ''the right to apply" for restitution as referred to in Art. 181 accrues on "the date of the final decree of the appellate court."

2. Facts of the case are rather simple. The respondent-plaintiffs filed Title Suit No. 68 of 1956 against the appellant-defendant for declaration of title and recovery of possession of the suit land. The suit was decreed by the Munsif on 29th May, 1957 and the plaintiffs by putting the decree into execution got deliv­ery of possession of the land on 26th August, 1957. But the defendants filed an appeal against the decree which was allowed and the decree was set aside by the Subordinate Judge, by an order dated 26th June, 1958. The plaintiffs preferred a second appeal being S. A. No. 142 of 1959, in the High Court Division which was dismissed on 26th May, 1965. Thereafter, the defendant filed an application on 29th May, 1967 for restitution under section 144 of the Civil Procedure Code. The application was resisted by the plaintiffs contending that it was barred by limitation under section 181 of the Limitation Act as it was filed beyond the period of three years as prescribed in that Article. This conten­tion was rejected by the learned Munsif who held that an application for restitution is in fact an application for execution of a decree and as such it is governed by Act. 182 of the Limitation Act which provides that for an application for execution of a decree the period of limitation of three yean begins, "where there has been an appeal, from the date of the final decree". On that principle the application for restitution was found to have been filed within the period of limitation. The learned Subordinate Judge, however, took the view that the application for restitution is not an application in execution but it is an Independent application for which no specific provision having been made elsewhere in the Limitation Act or in the Civil Procedure Code will be governed by the residuary provision of Art. 181 and that the three years period of limitation under this Article begins from the date of the decree of the first appellate court reverting the original decree and that on that date the tight to apply accrue. In this case the decree of re venal by the first appellate court having been made to June 26, 1958 the suit was not filed within three years from that date and as much the suit was barred by limitation.
 
3. The question involved in the appeal is a question which ha been agitated for about a century in the superior Courts of the Sub­continent and conflicting opinions have been expressed as to the nature of an application for restitution of a property in pursuance of an adverse appellate decree. For proper appre­ciation of this question relevant provisions of Law are quoted below:
 
Section 144, Civil Procedure Code.
S. 144 (1). Where and in so far as 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, to far as may be, place the parties in the position which they would have occupied but for such decree or much part thereof at has been varied or reverted; and for this purpose, the Court may make any orders, including orders for the refund of cost and for the payment of interest, damages, compensation and make pro­fits, which are properly consequential or such variation or reversal.
 
Articles 181 and 182 of Schedule 1 of the Limitation Act
 
Description of Application Period of imitation
 
 
Time from which period of limitation begins to run
Art. 181. Application for which no period of limitation is provided elsewhere in this schedule, or by section 48 of the Code of Civil Procedures 1908. Three years.
 
When the right to apply accrues
 
Art. 182. For the execution of a decree or order of any Cm! Court tot provi­ded for by section 48 of the Code of Civil Procedure. 1908.
 
Three   years;   or where a certified copy of the decree or order has been registered, six years. 1. The dale of  the decree of   order,   or
 
    2.   Where there has been an apple, the   date of the final decree or order of the Appell­ate Court, or the withdrawal of the appeal.
 
 
4. The fist and foremost question is whether an application for restitution it and application for execution of a decree as referred to in Art.182, Limitation Act and within the meaning of s.47 of the Civil Pro­cedure Code. If is so, the problem is solved easily for Art. 182 will straight away apply thereto and the period of limitation, which is same as under Art. 181 i.e. three years, will start from the decree of the first appellate court reverting that of the trial court if no appeal it filed, but if an appeal is filed, from the date of the final decree of the appel­late court. Mr. Ishtiaq Ahmed, learned coun­sel for the appellants has taken pains to press his point that the nature and scope of an application for restitution ere quite different from those of an application for execution and as such restitution is not part of an execution proceeding, nor is it in the nature of an execution proceeding. In support of this contention Mr. Ahmed has relied upon a number of Indian decision, particularly the following cases: Parmeshwar Singh vs. Sitaldin Dube AIR 1934 All 626 F.B Saraj Bhushan vs. Dtvendranath AIR 1932 Cal 30-: Hari Mohan Dala vs. Parmeshwar Shau. AIR 1928 Cal 646, Khwaja Allawali Vs. Kesarimal AIR 1947 Nag. 239. Bal kukund Marwari vs. Basata Kumari Dasi AIR I925; part 1.
 
5. In the Full Bench case of Allahabad High Court as referred to above, Solaiman CJ in his illuminating Judgment elaborated the di­fferences between applications for execution and an application for restitution and has tried to show that applications for restitution does not come under an execution procee­ding in any way and, therefore. Art, 182 Limi­tation Act, is not attracted to such an applica­tion. The salient points of difference between an application for execution and that for restitu­tion at pointed out by the learned Judge may be summarised thus: Section 144 C.P.C. does not make any reference to execution and this section has been put in a different part of the Civil Procedure Code namely. Part XI. under the head "Miscellaneous",  whereas an application for execution and all matters  con­nected therewith have been put in  Part  II under the ‘Head Execution’ in the said Code that if an application for restitution is same as an application for execution then a separate section like s. 144 is superfluous. Defi­nition of 'decree in s. 2 C.P.C includes the determination of an application under s. 47 and also the determination of a application under s. 144; If restitution is covered by "execution" then the definition of 'decree' would have covered both execution and resti­tution and these two terms would not have been specifically mentioned therein. Similarly, if restitution is covered by execution a suit for restitution is barred as provided under s. 47 and for that purpose a separate provision such as sub-section(2) of s. 144 will be super­fluous. If restitution application is an applica­tion for execution it will be inconsistent with s. 38 of the Civil Procedure Code, which provides that a decree may be executed either by the Court which pasted it or by the Court to which it is sent for execution, whereas an application for restitution is to be filed only in the court of the first Instance. Restitution was provided for in s. 583 of the Civil Proce­dure Code of 1882. That notion specifically laid down that any benefit by way of restitu­tion might be available by filing an applica­tion for execution of the decree of reversal passed by the appellate court but in s. 144 of the present Code, all reference to execution of a decree have been avoided. By avoiding any such reference conscious effort was made by the law makers to keep an application for restitution independent of and separate from an application for execution. The scope of an application for restitution is much wider than that of an application for execution in that the Court on an application for restitu­tion, may allow, besides restoration of a pro­perty, refund of money, payment of compen­sation, damage and mesne profits, where the executing court will only execute the decree as it is. In view of this difference the learned Judge concluded thus:
''An application for restitution under s. 144 is not an application for the exe­cution of a decree within the meaning of Art, 132, Limitation Act and that this Article does not apply to it. It is an application not specifically provided for and is governed by Art. 181, Limitation Act.”
 
6. In the Patna case (AIR 1925 Pat. 1) it has been held;
 
"Execution presupposes a decree or order capable of being carried into effect, restitution presupposes an act of the court which has done an injury to the suitors. Execution will be issued as a matter of course; but in cases of the code, restitution is not a matter of course but depends upon the discretion of the court and will be ordered only when the justice of the case calls for it. The juris­diction as to restitution bears only a superficial resemblance to the Jurisdiction at to execution. The jurisdiction to order restitution is inherent in the court and it flows not from any power which it may have to carry into effect the decree or order of the court but from the recog­nition of the duty which it owes to the suitors to take care that no injury is done to them by its act."
 
7. In the Calcutta case Saraj Bhushan Ghosh vs. Debendra Nath Ghosh Rankin, CJ. After considering a number of decisions came to the same finding as "An application for restitution under s. 144 Civil Procedure Code it not an application for execution and such applications are governed by Art. 181 of the Limitation Act and not by Article 182.
 
8. But the contrary view that also been followed persistently even in a greater num­ber of case, by different High Court parti­cularly of Bombay and Madras. Some of those cases are Somasundaram vs. Chokdam Limgam AIR 1917 Mad, 185, Vetlkataraju vs. Suraynarayana AIR 1943 Mad. 248 Kurgodi-gouda vs. Ningangouda AIR 1917 Bom 210, Hamidali vs. Ahmedali AIR 1921 Bom. 67 Bhaunath vs. Kedar Nath AIR 1934 Pat 246 (2). This view, as has been set out earlier in this judgment, is that an application for restitution is an application in execution and at such is governed by Art, 182 of the Limi­tation Act.
 
9. The Indian Supreme Court in the case “Mahijbhai vs.Manibhai"  AIR  1965 SC, 1477, considered the two conflicting view, expressed in as many at 20 cases decided by the different Indian  High Courts including the cases which have been already  referred to in this judgment and finally settled, though by 4 split Judgment  of 4 to 1 this question agreeing with the view that an application for restitution an application for execution and rejecting the view that it is not so, and that it is Art.182 and not Art, 181 that applies in an application for restitution. The dissenting judgment of Sarker, J. follow­ed more or lets the line of reasoning of Solaiman CJ. in the Full Bench case of Alla­habad High Court at already referred to above. Sarkar J. pinpointed the difference between an application for restitution and that for an execution and laid particular stress on two points. One is that s. 144, which provides that an application for res­titution is to be made to the court of first Instance, will be inconsistent with s.38 which provides that a decree may be exe­cuted either by the court which passed it or by the court to which it is sent for execution: the other point it that total avoidance of any reference to execution in 144 which repeals s. 583 of the prece­ding Code of 1882 wherein specific references was made to execution clearly indicates the legislative intent to keep restitution com­pletely separate from execution. In respect of the last point the learned Judge observed:
 
“Indeed the old section leads to the contrary view, for while it expressly provided that restitution would be by way of execution, the present section deliberately omits reference to execu­tion. This departure in the terminology used, would tend to the view that it was intended that the procedure under the new section would not be by way of execution."

As to the nature of an application for restitution that learned Judge held that it is an application for which no limitation has been provided 'elsewhere’ and observed;
 
''Apart from the fact that the application is not described as one in execution, the provision for the making of an order for the purpose of effecting restitution would lead to the conclusion that it ii this order which is to be executed for obtaining restitution. The section obviously could not contemplate two applications for execution, and, therefore, the earlier application resulting in the order mentioned in the section could not be one for execution. It seems to be impossible, looking at the terms of the section alone—and without more. We have no right lo look at any­thing else to say that the application contemplated in it is one in execution.”
 
10. Subba Rao, J. who expressed the ma­jority view in that case having traced the history of s.144 of the Civil Procedure Code of 1908 found that in the ultimate analysis what an application for restitution seeks is the fruit of an appellate decree of reversal and that this fruit derived by exe­cuting the decree, and on that consideration, held that an application for restitution was never intended to be an original application but it is an application in connection with a case in which a wrong decree passed earlier has been corrected in appeal  The conclusion arrived al by the learned Judge is quoted below:
 
"The section does not either expressly or by necessary implication change the nature of the proceedings. Its ob­ject is limited. It seeks to avoid conflict and to make the scope of the resti­tution clear and unambiguous. It does not say that an application for restitution, which, till the new Proce­dure Code was enacted, was an application for execution, should be treated at an original petition. Whether an application is one for exe­cution of a decree or it an original application depends upon the nature of the application and the relief asked for. When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the ap­pellate decree."
 
11. The learned Judge was fully aware of the reasons for the contrary view ema­nating from eminent Judges and realised that "the opposite construction for which the appellate contended is also a possible one”, but observed that "it ignores the history of the legislation and the anomalies that it introduces" and held:
 
"On a procedural matter pertaining to execution when a section yields to two conflicting constructions, the Court shall adopt a construction which main­tains rather than disturbs the equilib­rium in the field of execution".
 
12.  Restitution under s. 144 C.P.C. means restoration of a right or of a property to a person who has been deprived thereof by wrongful order of the Court which ii reversed. In English law the concept of restitution has found clear exposition in Halsbury’s Laws of England. (2nd Edn. Vol.14. P. 38)
In the following terms:
 
"Where a wrongful or irregular exe­cution has been set aside or where a Judgment or order has been reverted after execution thereon has taken place, restitution will be made to the suc­cessful party. The order setting aside the execution or reversing the judg­ment or order should provide for this and if it does, execution may issue upon it in the ordinary course. If the order does not so provide, another order may be made, or a writ called a writ of restitution be issued, comm­anding the Judgment creditor to restore the property or pay over the proceeds of sale".
 
The English law as quoted above provides that the court while reversing an erroneous decree may itself give direction for restitu­tion but if it does not do so, a separate order for restitution might be issued without, however, indicating, by whom. Reference to the English law, therefore, does not give as much assistance in the interpretation of s. 144.
 
13. In "Jai Berham vs. Kedar Nath Marwari", AIR 1922 P.C. 269, the Judicial Committee of the Privy Council considered the score of a.144 and duty of the court to effect restitution and held,
 
"It is the duty of the Court under s. 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."

This decision also does not appear to be very much helpful in our attempt to find the answer of the question before us namely, whether an application under s. 144 is an application in execution of a decree.
 
14. Prior to the enactment of s. 144 of the Civil Procedure Code of 1908, s. 583 of the Code of Civil Procedure. 1882 contained the procedure for restitution. Restitution thereunder was to be effected by an application for execution of the decree of reversal. Section 583 is quoted below:
 
"When a patty entitled to any benefit, by way of restitution or otherwise, under decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules herein before prescribed for the execution of decrees in suits."
 
Section 144 has  already been quoted at page 3 of this judgment Upon reading of these two sections it is char that in s. 583 provision was made for obtaining restitution by executing the decree and it is this provision which led to the interpretation that restitution is same as execution proceeding. But if an application for restitution under s.144 is same as an execution proceeding under s.47 why the old section 583 was replaced by s. 144 in which no reference to execution has been made at all. Both Sarkar, J. and Subba Rao, J who expressed the two conflicting views in the Indian case agreed that the old section contained some "conflict" or "anomaly" and observed that the new section was brought in just to remove the conflict or anomaly. But what we find is that by remo­ving the conflict, anomaly or confusion, whatever it might be, the legislature made its intention clear in the new section that resti­tution it completely separate from execution and that there two provisions which have been let out in separate section and under separate Chapters should not be inter-mixed or confused. If the legislative intention was to provide restitution through an execution proceeding, then either s. 144 would have simply contained a provision to the effect that restitution will be available in the same manner as the execution of a decree under section 47, or s. 83 would have been altogether deleted without re-enacting it in the form of s 144. If restitution falls under an execution proceeding the entire section 144 is then superfluous for, restitution will be obtainable by putting into execution the decree of reversal like any other decree. Similarly, inclusion in the definition of "decree" of the provision "the determination of any question within section 144 or the provision barring a suit for restitution con­tained in s. 144(2) will also be unnecessary".
 
Conscious avoidance of any reference to execution in s.144 clearly shows that an application for restitution is an independent application, no matter its object is the recovery of the fruit of a decree passed earlier but subsequently reverted. Application for restitution is an application for which no limitation hat been specifically provided for in the law and as such it attracts the residuary provision of Article 181. We are, therefore, firmly of the view that a restitution applica­tion is not an application for execution of a decree and as such it is not governed by Art. 182 but it is governed by Art. 181 of the Limitation Act.
 
15. The next question is when the period of limitation provided under Articles 181, Limitation Act begins to run. In other word when 'the right to apply accrues under Arti­cle 181. The High Court Division has ex­pressed the view that "the right to apply" accrues on the date of the final decree when appeal is preferred from the appellate decree of reversal.  On the interpretation of this Article also there is conflict of view, one view being that the right to apply for restitu­tion accrues on the date of the decree of the first appellate court reversing the decree of the trial court, and the other view being that this right accrues on the date of the final decree when appeal is preferred from the decree of the first appellate court.
 
16. Mr. Ishtiaq Ahmed has contended that the appropriate time for the application is the date of the decree of the first appellate court whether any appeal there from is filed or not and that once the limitation begins to run it cannot he impended by the filing of an appeal and in the absence of any order of stay.  In support of the contention he has cited a number of decisions particularly the decision of Sohrawarday, J. which was upheld by Rankin, CJ. and Buckland, J, disagreeing with the contrary view of Graham J, in the case, Hari Mohan Dalal vs. Parmeshwar Shau. (32 CWN 917 corresponding AIR 932 Cal 308). In that case both the Benches took as settled that Art. 181 and not Art. 182 govern a restitution application but difference arose as to when the right to apply for restitution accrues. The question considered was whether, by the plaintiffs appealing from the decree of the District Judie (first appellate court) the defendant's right to claim restitution was suspended or the doctrine of suspension is applicable in such a case. In the opinion of the learned Judge "there is no principle of law under which the period sanctioned by that Article can be extended', and it was observed that under s. 9 Limita­tion Act, "Once time has begun to run no subsequent disability or inability to sue stops. The learned Judge, disagreeing with the previous view of the same High Court expre­ssed in Atul Chandra Sinha Vs. Kunja Behary Sinha 27 CLJ 451 (l970) to the effect that "an application for restitution immediately on reversal of the preliminary decree by the first appellate court would have been futile by the second appeal," held,” The fact that the plaintiffs appealed from the decree of District judge cannot in my judgment suspend take away, restrict or extinguish the right of the defendant to seek restitution” As to the argument that if no extension  is allowed for the period spent during the pendency of the second appeal hardship would be caused to minors and other disabled persons who would be deprived of the benefits of secs 6 & 7 of the Limitation Act, the learned Judge observed that "in the matter of interpretation of statutes equitable consideration is out of place and held :
 
"The cause of action or right to apply under s. 144 accrued to the defendants on the very next day after the decree of the first court was modified by the appellate court   and nothing   has happened since to suspend or stay or, to be more precise, to review or give a fresh start to the exercise of rights."
 
17. This view of the High Court however did not find favour with the Judicial Committee of the Privy Council in the case Nagendronath De vs. Surendra De ILR 1933 Cal 1. Their Lordships of the Privy Council held;
 
"It is at least an intelligible rule that, go long as there is any question sub judice between any of the parties , those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage. Nor, in any such case as this, is the judgement-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to the debtors, and, if he is virtuously inclined, there is nothing to prevent him paying what he owes into court."
 
In a case where second appeal is filed chal­lenging the decree of reversal of the first appellate court and restitution takes place during pendency of the second appeal, the restitution may be set at naught by the reversal in the second appeal and possession of the  properly will change bands once again. When appeal is the extension of the original cause we find no reason why the "right to apply' should not be taken to accrue on the date of the final decree of the appellate court if appeal is preferred from the decree of reversal of the first appellate court.
 
In the result, the appeal is dismissed with costs.
 
Ed.