P L D 1996 Lahore 582 (PLP)

This petition, under section 115 of C.P.C. ‑by Mst. Uniatullah Bcgum/applicant in restitution application, calls in ‑question the order, dated 21‑2‑1994 whereby the learned ‑ Additional District Jladg'e Lahore dismissed petitioner's appeal and affirmed the. order of learned Civil Judge, Ltihore, dated 27‑2‑1993/rejecting, restitution application lodged by her.

2. Stripped off non‑essential, material contested facts of this case, are: that Munawwar Akhtar/respondent sued for specific performance of an agreement to sell with regard to house No.45 Mozang Road, Lahore (shortly described as 'house') against petitioner.. On the survey of available material, the learned trial Court held that the petitioner had agreed to sell the house at the rate of Rs.3,000 per Marla for the land and Rs. 10 per square foot for constructed area; that the price of the house, so worked came to be Rs. 116,497.90; that the respondent had already paid Rs.55,000 to petitioner as earnest money. On these conclusions, the learned trial Judge decreed the suit on 1‑3‑1978 in following terms: "

26. The upshot of ‑any findings above is that the plaintiff has succeeded in proving his case. 1, therefore, pass a decree for the specific performance of the contract of 6‑1‑1973 in favour of the plaintiff against the defendants subject to the payment. The amount be deposited in the Court. After deposit of the amount the defendants should execute the sale‑deed within a reasonable time, failing which the reader of this Court shall get the deed registered by Sub‑Registrar under the order of this Court. The cost of this suit shall be borne by the defendants.

3. In compliance with the afore‑decree, the respondents deposited an amount of Rs.88,047.90 on 7‑3‑1978 in the State Bank of Pakistan, Lahore and thereafter the executing Court got the sale‑deed executed in favour of the decreeholder on.9‑5‑1978; the sale‑deed was registered on the same day. The respondent withdrew an amount of Rs. 15,624 as cost payable to him according to said decree. This happened on 9‑5‑4978. Feeling aggrieved, petitioner and Pir Salahuddin filed Regular First Appeal No. 150/78 which was partly allowed by the Division Bench of the High Court on 6‑8‑1988. Vide this decision" the Appellate Court modified the decree of the first Court to the extent that respondent would pay an amount of Rs.1,16,40.90; that any payment, made under the original decree, shall be deemed to be part of the afore‑stated amount and the respondent shall have to complete the shortfall. The decree of the original Court was modified by the Appellate Court in following terms: "In view of what has been said above, the app‑:!al is partially accepted and the decree of the teamed trial Court is modified to the extent that the respondent will pay Rs.1,16,497.90 instead of Rs.99,047.90 as balance of the sale price to appellant No.

1. The respondent is given six months' time to make the requisite payment. Any payment already made in obedience to the decree of the learned trial Court will be deemed to be part of Rs. 1. 16,497.90 and the respondent will make UP the short‑fall. The parties are left to bear their own costs.‑" The leave to appeal filed by petitioner did not succeed. In the context o the aforesaid events which are no longer in dispute, respondent deposited an amount of Rs.28,450 in order to comple te the shortfall so found. .4. This, however, did not foreclose the matter between the parties. Feeling still dissatisfied, Mst. Umatullah Begum and Pir Salahuddin moved an application under section 144 of C.P.C. in the Court of first instance on 1‑4‑1992. It was alleged therein that respondent had not complied with the term of the decree of the Appellate Court and had actually deposited Rs.15,620 lets than decretal amount, i.e. Rs.1,16,497.90 and so the respondent had failed to comply with the decree of the Appellate Court and the suit filed by respondent, therefore, stood automatically dismissed. It was further averred that the sale deed executed by Court on 9‑5‑1978 in favour of respondent, so stood vitiated and on these circumstances, relationship of landlord and tenant stood resurrected between the parties. On these premises it was canvassed that the petitioner was entitled to recover an amount of Rs.1,44,500 at the rate of Rs.850 per month from respondent for a period of 14 years and two months. On these pleas following reliefs were claimed: . "It is, therefore, respectfully prayed that‑‑ (i) an order for the cancellation of the sale‑deed may kindly be passed; (ii) the respondent be directed to pay an amount of Rs. 1,44,500 at the rate of Rs.850 per month for 14 years and two months." The respondent, in reply, contended that he had not violated a y term of the decree of the Appellate Court; that the application ‑was barred by time and there was no circumstances warranting for any restitution.

5. On the pleas of the parties, necessary issues were framed. The parties led their evidence in support of their respective pleas.. On the scrutiny of the same, the learned trial Judge/Court of first instance, held that the respondent had not committed any breach of any term of the Appellate Court's decree; that the petitioner was not entitled to any requested relief, and furthermore the application was barred by time. On these conclusions, the learned first court dismissed the application on 27‑2‑1993. Against this order, petitioner preferred appeal which too was dismissed by the Appellate Court on 21‑2‑1994. While dismissing the appeal, the Court of appeal also came to the conclusion that the restitution application was regulated by Article 181 of the Limitation Act and so it was barred by time. This is how this revision petition has come to this Court.

6. The arguments advanced by the learned counsel for the petitioner can be conveniently summarised as below:‑‑ Firstly; that the application under section 144, C.P.C. is in fact an application in execution of decree and is not a miscellaneous application. On this premises it was suggested that Article 182 in Schedule to Limitation Act was applicable to such application and not Article

191. Reliance was placed on Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1970 Kar. 242, F.A. Khan v. Government of Pakistan PLD 1964 SC 520 and Nizam‑ud‑Din v. Muhammad Saeed 1993 CLC 2130. On this basis it was. suggested that application was within time. Secondly; that the first Court decreed the suit on 11‑3‑1978 that the respondent deposited Rs.88,047.90 on'7‑3‑19781; that on 9‑5‑1978 the respondent withdrew an amount of Rs.15,724 as cost awarded to him; thdt the appellate decree was passed on 6‑8‑19,88; that in obedience of this, the petitioner was to complete the deposit of Rs. 1, 16,497.90; that instead of that deposit, he only deposited Rs.28,047 and so there was shortfall of Rs.15,

624. On.the basis of this circumstance it was argued that the respondent had not complied with the terms of the decree of the Appellate Court within a period of six months and so the suit filed by the respondent, resultantly, stood dismissed. On the basis of the above circumstances it was urged that the relationship of the purchaser and seller between the petitioner and the respondent came to an end and respondent was relegated to the position of tenant under the petitioner. On this basis the ' petitioner was entitled to recover an amount of Rs. 1,44,500 at the rate of Rs. 850 for 14 years and 2 months from the respondents. Continuing, the learned counsel maintained that the registered sale‑deed dated 9‑5‑1978 be declared to have been rendered legally and factually and the respondents be directed to pay the aforementioned amount as rent of the house. Reliance was placed on Kewal Ram v. Ram Lubhai AIR 1987 SC 1304, Mirza Khan v. Zar Bibi PLD 1958 (W.P.) Quetta 21 arid Abdul Qayyum.v. Ali Asghar' Shah 1992 SCMR 241. 6‑A. Mr. Abid Hassan Minto, Advocate, appearing on behalf of the respondents, replied as follows:‑‑ (i) that the restitution application under section 144, C.P.C. was 'a miscellaneous application having no nexus with the execution of the decree and so it was regulated by Article 181 in Schedule to Limitation Act. According to. the learned counsel the appellant's decree was dated 6‑8‑1988; the application was moved on 2‑4‑1992 and it was so clearly barred by time. Strength w8 sought from Ram Singh v. Dhayan Singh AIR 1944 Lah. 190. (ii) That the doctrine of merger as canvassed by the learned counsel for the petitioner was inapplicable to the facts and circumstances of this case and especially the proceedings under section 144, C.P.C. (iii) (iii) That the Appellate Court vide decree dated 6‑8‑1988 directed the respondent to deposit Rs. 1, 16,497.90 instead of Rs. 88,047.90; that any prior payment made by the respondent shall be deemed as part of the said payment and so the petitioner did not' deposit an, amount of Rs.28,047.90 which brought the total deposit to Rs.1,16,497.90. On the face of it, the respondent had complied with the terms of the decree and there was no ground whatsoever for any restRution. 6‑B. From the foregoing narratioh of the facts, circumstances of the case and the illuminating arguments of parties following questions emerge for consideration:‑‑ Whether the restitution application filed by the petitioner was within time? (ii) Whether on the facts and circumstances of the case the petitioner is entitled to any restitution? (iii) To what relief petitioner is entitled?

7. The stage is, now, ripe for, answering the aforesaid question. The question No. 1 is vexed question of law. Before partition, there was sharp divergence of opinion between'the various. High Courts of sub‑continent. The High Court of Lahore, the High Court of Allahabad, Patna High Court were of view that restitution application was not an application for execution and so for th e purpose of limitation it was governed by Article 181 of Limitation Act. Following are leading precedents: Chanda Singh and others v. Bishen Singh AIR 1924 Lah. ‑166, Gujar 'Mal v. Narain Singh AIR 1926. Lah. 685, Telu v. Raja Ram and others AIR 1938 Lah. 456, Rain Singh v. Ch. Dhayan Singh and others AIR 1944 Lah. 190, Parmeshar Singh v. Sitladin AIR 1934 All. 626, Rama Kant v..Satya Narain AIR 1938 All. 552, Badruddin v. Mahyar Khan * AIR 1939 All. 66, Ujagar Singh v. Likha Singh AIR 1941 All.

28. Although, Patna High Court, before Partition, did not adopt a copsistent view yet the weight of judicial authority was in favour of above view. On the contrary, Madras High Court adopted different view and held that an application for restitution under section 144, C.P.C. was with regard to enforcement of varied decree and so it was an application for execution. See Soma Sundar Ram v. Chokkalinga AIR 1917 Mad. 185, Panchapakesa v. Natesa Pattar AIR 1926 Mad. 813, Sudali Muthu Pillay v. Sudali Muthu Pillay AIR 1923 Mad. 270 and Krishna Machari v. Chengalraya AIR 1940 Madras

281. Bombay High Court, before Partition, took the same view. Reference be made to Ganpat Gathi v. Navnitlal Ranchhoddas AIR 1940 Bom.

30. Rangoon High Court adopted this view in Muthukarappan v. Annamalai AIR 1933 Rangoon 180.

8. The controversies, highlighted above, were resolved and settled by Supreme Court of India in AIR 1965'SC 1477. Da very comprehensive analysis of the different views, it was held by majority that an application for restitution under section 144, C.P.C. was an application for execution of a decree and, therefore, such application was governed by Article 182 of Limitation Act and not Article 181 of the Limitation Act. While holding this view it was said:‑‑ "We realize that the opposite construction for which the appellant contended is also a possible one; but it ignores the history of legislation and the anomalies that it introduces. 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. The historical background of section 144 of the Code of Civil Procedure, the acceptance of the legal position that an application for restitution is one for 'execution of a decree by a number of High Courts* the inevitable adoption of the said legal position by innumerable successful appellants within the jurisdiction of the said High Court, the possible deleterious impact. of a contrary view on such appellants, while there will be no such effect 'on similar appellants within the jurisdiction of High Courts which have taken a contrary view, also persuade us to accept the construction that the application for restitution is one for execution of a decree. We'; therefore, hold on a fair construction of the provisions of section 144 of the Code of Civil Procedure that an application for restitution is an application for execution of a decree. Coming to the second application, namely, Special Darkhast No.7 of 1953, filed for recovery of costs, undoubtedly it is governed by Article 182 of the Limitation Act. But the appellant contends that the High Court wrongly held that the said application being within 3 years from the date of the amended decree, namely, August 24, 1950‑, it was within time. Under cl.(4) of Article 182 of the Limitation Act an application for execution of a decree can be filed within 3 years, where the decree has been amended from the date of the amendment. Dr. Barlingay contended that the amendment dated August 24,1950, was only analogous to a correction of a clerical mistake and was not an amendment affecting the rights of the parties and, therefore, it was not an amendment within the meaning of Article 182(4) of the Limitation Act, It is not necessary to decide in this case whether the expression amendment' in the said clause takes in an amendment of a clerical error, for we are satisfied that on the facts of the case the amendment was a substantial one and that it did affect the rights of the parties under the decree. It may be recalled that there were 7 appellants in the High Court and the Appellate Court set aside the decree passed by the Trial Court against them. By the amendment, dated August 24, 1950, the name of the 7th appellant was struck out from the decree. The result of the amendment was that while the original appellate decree was in favour of the 7 appellants, the amended appellate decree was only in favour of 6 appellants. To that extent the right of the parties were modified by the amended decree. It is, therefore, clearly a case where the decree has been amended within the meaning of clause (4) of Article 182 of the Limitation Act. If so, the application for execution as well as that for restitution having been filed within 3 years from that date, both were clearly within time." This question came up for consideration before his lordship Justice Zafar Hussain Mirza in Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1979 CLC

16. On indepth study of the relevant law and precedents, his lordship adopted a view taken by Supreme Court of India in AIR 1965 SC 1477. It will be useful to reproduce para. No. 12 of this report which is as under: ‑‑ "From the aforesaid synopsis and review of the reasons assigned in the two judgments, I am of the opinion with all due respect for the learned Judges of the Lahore High Court that the view of the Indian Supreme (~purt seems to be the correct view to take as to the point at issue herein. I might add that At least at one place in the Code of Civil Procedure I have found a provision which is indicative of the legislative intendment that 'an application for restitution was considered at par with an application for execution of a decree. Section 145 provides for enforcement of liability of a surety for the performance of any decree or for the restitution‑of any property in execution of a decree. It is, inter alia, laid down that where any person has become liable as a surety for the restitution of any property taken. in execution of a decree such an order may be executed against him in the manner provided for execution of decrees. I, therefore, hold that an application under section 144 is an application for execution of a decree and would be governed by the relevant Article of the Limitation Act and not by Article 181 of that Act," 9. 1 have gone through the relevant applicable laws and views propounded by various Courts of sub‑continent. On my independent study, I am inclined ‑to subscribe rule enunciated in Pakistan Industrial Development Corporation, Karachi v Aziz Qureshi 1979 CLC 16 (supra) which is fully in accord with the well‑established principles harmonious and puipusive coustiuUdua of statutes. The basic objective underlying section 144, C.P.C. is to redress the wrong and reinstate aic wrong party to the position to which it is entitled under varied A decree of the Court. The execution of decree is the fruit of litigation between parties and so it can be safely said that application under section 144, C.P.C. is with regard to enforcement of decree and. is such one of the steps in the execution of the decree. 1, therefore, have no hesitation to hold that application filed by Mst. Amanat Begum was a step in execution, and therefore it was not governed by Article 181 of Limitation Act. The Next question surviving for consideration is that whether Article 182 or 183 of Limitation Act applies to such applications. This question is free from difficulty. Article 182 of the Act was omitted from the Act by Law Reforms Ordinance, 1972 and so is no more in the statute book. I now come to Article 183 of the Act. It plainly covers the order of Supreme Court which modifies or affirms the decree of High Court, whether passed in original or Appellate jurisdiction and its enforcement is sought. Applying this principle to the facts and circumstances of the case it is quite clear that the First Court had rendered the decision on 1‑3‑1978; that this decision varied by Appellate Court on 6‑8‑1988; that decision was affirmed by the Supreme Court on 20‑5‑1991. In view of above, it is quite clear that application for restitution was lodged within one year and so it was within time under Article 183 of the Limitation Act which prescribes a period of 6 years for such applications.

10. Now I come to questions Nos.2 and

3. Both of these questions are inter‑connected and so will be dealt with together. It is a well‑settled principle of law that acts of the Courts should not be allowed to occasion any injury on the suitor. Lord Cairns, in a celebrated case f Rodger v. Comptior D. Escompte Deparis (1871) 40 11 PC 1 (3, 4), said:‑‑ 0 "One of the first and highest duties 'of Courts i . s to take' c I 'are that theact of the Court does no injury to 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 which entertains jurisdiction over the matter to the Highest Court which finally disposes of the case (ILR (1953) 2 Cal. This rule'of'equity' was embodied in section 144 of the Civil Procedure Code. It reads as follows:‑‑

144. Application of resoltution.‑41) Were and in so far. as a 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, so paras may be, place the parties in the position which they would have occupied but or such decree 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 subsection (1). A plain look at this provision indicates that this embodies the principle that nobody shall be prejudiced by the act of the Court; that the foremost duty of the Court is, to take care that the act of Court does no injury to the suitor and when such injury is found by the Court on the event of variation or reversal of the decree, it is the duty of that Court to undo the wrong and reinstate the wronged party to the position to which it is entitled. In short, this principle of restitution is attracted where the application shows three circumstances, namely (i) the restitution must be in respect of the decree which had been varied or reversed (ii) the party applying for restitution must be entitled to benefit under the ‑ ‑ ‑ decree and (iii) the relief must be properly consequential on reversal and variation of decree and is not opposed to any other principle of equity. See Birendra Nath Basu Thakur v. Surendra Kumar Basu Thakur AIR 1940 Cal.

260. Applying these tests to the facts of the case in hand, it is quite clear to me that vide decree dated 27‑2‑1993, the first Court directed the respondent to deposit an amount of Rs.88,

048. Vide receipt dated 7‑3‑1978, respondent did deposit that amount. The first Court had awarded cost to respondent and so he withdrew an amount of Rs. 15,624 on 9‑5‑1978. Appellate Court, vide decision dated 21‑2‑1994, commanded the respondent . to pay an amount of Rs.116,497.90 instead of Rs.88,

048. The perusal of the decision of the Appellate Court shows that parties were to bear their own costs; that this decree was affirmed by the Supreme Court. The perusal of the decree of the Appellate Court further shows that no direction was given as to whether if the respondent did not comply with the term of the decree, the suit automatically would stand dismissed. In this scenario, the respondent did deposit Rs.28,

450. This deposit evidently brought the total amount so deposited, to Rs. 1, 16,497.90. However, the respondent missed to see that he had withdrawn an amount of Rs. 15,624 and so the deposit made by him was deficient to that extent. The question for consideration is as to whether on the fact of the decision of the Appellate Court, the respondent was enjoined to complete this shortfall also: The case of the petitioner is that the respondent had to deposit that amount also. while the case of the other side is that he had withdrawn that amount under the order of the Court; that the cost had been awarded to him and so he was not required to deposit that amount. I am afraid I do not subscribe to the case of the other side, i.e. respondent. The judgment and decree of the Appellate Court clearly indicated that the respondent had to deposit an amount of Rs. 1, 16,497.90 in all; that any amount paid by the respondent under the decree of the first Court, would be deemed to be a payment under the decree of the Appellate Court; that the parties would bear their own costs. The decision of first Court merged in thedecision of Appellate Court and so finding with regard to payment of cost stood reversed. On these facts, I have no doubt in my mind that the respondent had to deposit that amount also and the petitioner was entitled to receive that amount under the decree of the Appellate Court. The non‑payment of that amount had actually arisen out of the act of the Court and on account of want of clear I direction by the Appellate Court. The doctrine of restitution embodied in section 144, C.P.C., so was clearly applicable to facts and circumstances of restitution application. 1, therefore, hold that the petitioner was entitled to receive further amount of Rs. 15,624 which he had withdrawn from the Court on 9‑5‑1978 in order to make the deposit of Rs.1,16,497.90. As regards the claim that on account of want of this deposit the suit filed by the respondent stood dismissed and relationship of landlord and tenant between the parties stood revived, I see no merit in this plea. Such pleas do not relate to restitution. These are the outside ambits of section 144 of C.P.C. Furthermore, there was no clear direction in the decree of Appellate Court or Supreme Court on this angle of case. These pleas are, therefore, found to be wholly devoid of merit and are accordingly rejected.

11. As a result of the above discussion, this petition succeeds. The respondent is directed to deposiL an amount of Rs. 15,624 within a period of two months from the communication of this order. Respondent shall further pay an amount of 6 % profit on the said amount, i.e. Rs. 15,624 from the date of the Appellate Court's decree'to date of its realisation., He shall also bear the costs of pruceedings under section 144 of C.P.C_ The office shall communicate the order of this Court to respondent/plaintiff as quickly as possible. A.A./U‑2/L Order accordingly.