1979 PLP 16 (CLC)

civil Court other than, copy of the (2) (where there has (1) applications to which decree has been been an appeal) the section 48 of the Code registered, six date of the final of Civil Procedure, years. decree or order of 1908, applies and the appellate Court, (2) applications provided or the withdrawal for by Article 183. of the appeal, or etc 183.-To enforce a judg- Six years. When a present right ment, decree or order of to enforce the judg any High Court in the ment, decree or order exercise of its ordinary accrues to some per- original civil jurisdic- son capable of realis tion, or an order of the ing the right : Provi Supreme Court. ded etc.

7. It was stated at the bar by Mr. Mansoor Ahmad Khan that if the present application was an execution application it will be governed by Article 183 which provides for a period of six years, but on the other hand, if the present application is found to be an ordinary application, then obviously the residuary Article 181 will be attracted and the three years period of limitation would govern the application. There is no dispute that the right to make this application accrued to the appellant by virtue of the judgment of the Supreme Court dated 2-3-73. The terminus a tiara of the period of limitation for making of the present application, therefore, was the date of the Supreme Court judgment. The present application was submitted by the appellant on 13-10-76. If, therefore, the case is governed by Article 181 of the Limitation Act the application is clearly out of time but, on the other hand, if the appropriate article applicable to this case is Article 183, the application would be very much in time.

8. The question which, therefore, arises for consideration is whether the present application under sections 144 and 145, C. P. C. is a simple application attracting Article 181 or an execution application to be governed by Article

183. Judicial opinion in the Sub-Continent has been divided on the question whether an application for restitution under section 144 is or is not an execution application. Some High Courts have held the view that such an application is an' ordinary application falling within the purview of residuary Article 181 whilst the others have preferred the contrary view that it will be an execution application attracting Article 182 (as it stood before its repeal): As far as the Indian Courts are concerned. the aforesaid conflict of opinion was resolved and settled by the Supreme Court of India after an extensive review of the opinion of almost all the High Courts in the Sub-Continent in a case reported as Mahijibhai v. Manibbai (A I R 1965 S C 1477). It was held in that case per majority view that an application for restitution under section 144, C. P. C. is an application for execution of a decree and. therefore, such application is governed by Article 182, Limitation Act and not by Article 181 of the Limitation Act which is a residuary Article of limitation.

9. The point at issue was considered by a Full Bench of the Lahore High Court in the case of Ruin Singh v. Dhavan Singh (A I R 1944 Lah. 190) in which their Lordships had preferred to adopt the contrary view that an application for restitution under section 144, C. P. C. is not an application for execu tion within the meaning of Article

182. In this case also the learned Judges of the Full Bench had exhaustively reviewed the opinion of the various High Courts in the Sub-Continent on the point. Mr. Mansoor Ahmad Khan strenuously contended that the exposition and the interpreta tion of law made by the Lahore High Court proceeds from a better and suitable basis and therefore, the view expressed therein should be followed in preference to the decision of the Indian Supreme Court, particularly when the Lahore decision was not noticed by the Supreme Court. I have carefully considered the two decisions and in my opinion, if I may say so with respect, the view of the Supreme Court of India appears to me to be the better and correct view of the law. At the outset it may be stated that the learned counsel for the respondents was not entirely correct in saying that the opinion of the Full Bench of the Lahore High Court was not con sidered by the learned Judges of the Indian Supreme Court. Although it is correct that the Lahore case of Ram Singh was not particularly noticed, their Lordships had, however, considered the Full Bench judgment of the Punjab High Court in the case of Mela Ram v. Dhoram Chand (A I R 1958 Pb. 132) which had expressly referred to the aforesaid Full Bench judgment of the Lahore High Court and followed the view expressed therein as the consis tent view on the point by the Lahore High Court.

10. Since the case of Ram Singh (A I R 1944 Lah. 190.) was strongly relied upon by the learned counsel as providing the correct exposition of law, I would consi der the reasons that prevailed with their Lordships in preferring the view that an application under section 144, C. P. C. is not an application for execution of a decree. The reasoning of the Full Bench is summarised in the following passage of the judgment From a review of these authorities, it is obvious that both sides of the question are very strongly supported. It is difficult generally to make a choice in these circumstances, but independently of these judgments, I am definitely of the opinion that whatever could have been said under the old Code of Civil Procedure, under the present Code an application under section 144 can by no stretch of language be treated as an application for execution. "Execution" as defined in Stroud's Judicial Dictionary, 2nd Edn. "signifieth in law the obtaining of actual possession of anything acquired by judgment of law", and it is obvious that in making an application for restitution, the applicant does "not seek to enforce any judgment of law directly. It is true that the relief flows from a judgment of law but it cannot be said to have been acquired by that judgment itself. Further, it cannot be denied that the proceedings contemplated in section 144, Civil P. C., are altogether of a preliminary nature. The applicant by making an application under this section moves the Court to make an order that he may be placed in the position which he occupied but for the decree that had been varied or reversed, and the Court then makes an order which enables the applicant to secure the benefit sought by him. In making that order, the Court is empowered not only to direct the refund of costs, but also to direct the payment of interest, damages, compensation and mesne profits. That order of the Court is by virtue of section 2 (2); Civil P. C., treated as a decree of the Court and executable as such. An application, therefore to obtain an executable order cannot in my view be called an application for execution in itself. Moreover, it is obvious that merely on the strength of an appellate decree by which the original decree is modified or reversed, an applicant cannot move the Court to issue those processes which are provided for in Order XX1, rule 11 (2) (j), Civil P. C. In other words, the applicant can neither ask for the attachment and sale of any property at once nor apply for the arrest and detention in prison of any person, or the appointment of a receiver direct. These modes of executing the decree are open to him only if his applica tion is allowed and an order under section 144 is made. Another distinction which is very clear between section 47 and sec tion 144, Civil P. C., is that while under section 47 an application is to be made to the Court executing the decree., an application under section 144 can only be made to the Court of the first instance. It is further significant that both in section 47 and section 144, a separate provision is made barring regular suits. If an application under section 144, was, in the view of the Legislature, an application for execution, it would not have been necessary to repeat this bar in section

144. Influenced by these considerations, I am constrained to hold that how ever forceful the arguments to the contrary, restitution is something apart from execution."

11. On a careful reading of the Indian Supreme Court judgment it will appear that all the reasons assigned by the Full Bench of the Lahore High Court were considered and found untenable. It was observed that in the Code of Civil Procedure, 1859, there was no express provision for restitution. But the scope of the doctrine of restitution was considered by the Judicial Committee in Shama Purshad Roy Chowdhury v. Hurro Pur shad Roy Chowdhry (10 Moo. Ind. App. 203 (P C)), wherein it stated the principle thus "This rule of law rests, as their Lordships apprehend upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has so been reversed or superseded, the money recovered under it ought certainly to be refunded, and, as their Lordships conceive, is recoverable by summary process or by a new suit or action. The true question, therefore, in such cases is, whether the decree or judgment under which the money was originally recovered has been reversed or superseded ; and applying this test to the present case, their Lordships are of the opinion, that the decrees obtained by Tara Purshad against Doorga Purshad were superseded by the Order of Her Majesty in Council pronounced in the year 1849. It was plainly intended by that order that all the rights and liabilities of the parties should be dealt with under it and it would be in contravention of the order to permit the decrees obtained by Tara Purshad pending the appeal on which it was made to interfere with this purpose." It was observed that in the cited passage from the decision of the Privy Council, it was made clear that the rights and the liabilities of the parties should be dealt with only under the decree superseding the earlier decree. In the Code of Civil Procedure, 1882, for the first time, section 583 made a statutory provision for restitution as a result of a decree passed in appeal and empowered the original Court to execute the Appellate Court decree for this purpose at the instance of the party entitled to any "benefit by way of restitution or otherwise under a decree". This provision was interpreted to apply in a case where a party is entitled to restitution even when the' appellate decree did not expressly provide in that behalf. Such restitution applications under section 583 of the Code of Civil' Procedure, 1882 were considered as execution proceedings and all the High Courts of the Sub-Continent with the exception of one held that the governing Article was Article 179 of the Limitation Act, 1877 which corresponds to Article 182 6f the present Limitation Act. It was in this background that the Legislature in the Code of Civil Procedure, 1908 introduced section 144 making a comprehensive provision for rights arising by way of restitution or otherwise as a result of modification or reversal of the decree of the First Court. In Jay Berham v. Kedar Nath Murwari (AIR 1922 P C 269) the Judicial Committee held that it is inherent in the general jurisdiction of the Court to place the parties in the position which they would have occupied but for the decree which was varied or reversed. The judgment of the Indian Supreme Court then proceeded to make the following observations as to the nature and scope of section 144 :- "The section, to avoid the earlier conflict, prescribes the procedure, defines the powers of the Court and expressly bars the maintain ability of a suit in respect of a relief obtainable under this section. The section does not ether expressly or by necessary implication change the nature of the proceedings. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution, which till the Procedure Code was enacted was an application for execution, should be treated as an original Petition. Whether an application is on: for execution of a decree or is 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 sum: by reason of the appellate decree in his favour, he is not initiating any original proceeding bat 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. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree." The above passage is an ann.wer1o the first two grounds that found favour with their Lordship3 of the Full Bench, of the Lahore High Court. As to the argument that an order passed under section 144 is appealable as a decree by virtue of section 2 (2), C. P. C. and, therefore, itself is executable as a decree, tending to show that the proceedings under section 144 cannot be treated as proceedings in execution of a decree was also considered by the Supreme Court. It was stated that the provisi3ns of section 2 (2), C. P. C. whereby an order passed under section 144 was included in the definition of a decree were equally applicable to an order passed under section 47, C. P. C. The two sections were included for the purpose of giving a right of appeal. If, therefore, an execution application to wh'.ch section 47, applies does not cease to be an execution application by reason of the section being included in the definition of "decree", an execution application under section 144 cannot likewise ceases to be one for the reason that the sAid section is included in the definition of "decree". The next ground in the Full Bench decision was the distinction between section 47 and section 144, C. P. C. inasmuch as an application under the former section is to be made to the Court executing the decree, whereas an application under the latter section can only be made to the Court of first instance. In the Supreme Court judgment it was pointed out that under section 38, C. P. C. a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. But under section .37 the expression "Court which passed a decree", or words to that effect, shall in relation to the execution of decree unless there is anything repugnant in the subject or context, be deemed to include, (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for execution. of the decree, would have jurisdiction to try such suit. Therefore, it was observed that the expression "Court which passed a decree" includes, the Court of first instance where the decree to be executed has been passed in the exercise of appellate jurisdiction.

12. 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 Court seems to be the correct view to take as to the point at issue herein. I might add that at least atone place in the Code of Civil Pro cedure I have found a provision which is indicative of the legislative in tendment that an application for restitution was considered at par with an application for execution of a decree. Section 145 provides for en forcement 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 Articles of the Limitation Act and not by Article 181 of that Act.

13. In view of the above the present application would be governed by Article 183 of the Limitation Act. It may be pointed out that in contradistinction to the language used in Article 182, this Article uses the words "to enforce a judgment, decree or order of any High Court." The words "for the execution of a decree or order" as used in Article 182 (before it was omitted by amendment of the Limitation Act) are cons picuously missing from the language of Article

183. The two decisions considered in this judgment above related to the interpretation of Arti cle 182 with reference to the language employed therein, i.e. whether the expression "application for the execution of a decree" would extend to an application for restitution under section 144, C. P. C. In other words. the question considered was whether an application under section 144 could be considered as an application for execution of a decree so as to be governed by Article 182 in the matter of limitation. The question in the present case that would require consideration on the other hand, would be whether such an application under section 144 is an application "to enforce" the judgment, decree or order of a High Court or an order of the Supreme Court. In Jagannath Jugal v. Chimanlal Chowdhuri (A I R 1949 Cal. 113) it was observed at page 119 that "to enforce" is wider than "to execute" a decree and should be interpreted as equiva lent to "to give full effect to". I am, therefore, of the opinion that an application for restitution under section 144; C. P. C. as a result of the order in appeal passed by the Supreme Court modifying the decree of the High Court, as is the case here, would well fall within the purview of Article 183 as such an application would clearly be an application to enforce the order of the Supreme Court in the sense that there is a prayer for giving full effect to such order of the Supreme Court by restoring to the applicant what was taken from him under the decree which was reversed or modified. Clearly therefore, the present appli cation would be governed by Article 183 of the Limitation Act and is, therefore, well within time. The objection raised by the respondents has, therefore, no force.

14. Learned counsel for the respondents further contended that in any case the present application is not maintainable as against respon dent No. 2 whose capacity is that of a surety, and the relief of restitu tion cannot extend to her. In this behalf it was argued that respondent No. 2 had furnished a surety bond for the purposes of the L. P. A. pro ceedings and not beyond. It was therefore, contended that the appellants having failed in the L. P. A. the surety bond of respondent No. 2 stood discharged and the surety released thereby. In this connection it would be relevant to state the circumstances under which the surety bond was furnished by respondent No.

2. After the appeal was admitted for hearing, an application under Order XLI, rules 5 and 6, C. P. C. was also submitted praying for stay of execution of the decree passed in favour of respondent No. 1 by the learned Single Judge. The decretal amount was deposited in Court simultaneously. The L. P. A. Bench by its order dated 2-6-61, however, permitted respondent No. 1 to withdraw the amount upon furnishing a security. The said respondent thereupon offered respondent No. 2, his wife as a surety to furnish security in the sum of Rs. 43,000 vide Bond No. 4544 dated 21-8-64. The bond was furnished on the assurance of immovable property bearing No. 19-S. Sheet 53/5, Saddar, Karachi. By this bond respondent No. 2 undertook "that the respondent shall obey each and every order of the Court or in default of his doing so I hereby bind myself, my heirs, executors and administrators to pay the sum of Rs. 43,000 to the Court or otherwise the Court shall be competent to realize the requisite amount from the property tendered by way of security". Persuant to this the respondent No. 1 withdrew an amount of Rs. 42.254.59 on 30-1-64. The L. P. A. was dismissed on 7-9-64. After that the surety filed an application on 8-5-65 for the return of the documents of title deposited in Court at the time of furnishing security. In the meantime, the appellant had filed an appeal in the Supreme Court, but since no orders of stay were passed by the Supreme Court the Additional Registrar (A. S.) allowed the documents to be returned to the surety. Accordingly, the documents were returned to the surety on 11-6-65. The record does not reveal any notice having been given to the appellants of the application by the surety for the return of documents and the order seems to have been passed with out hearing them.

15. Now there can be no doubt that the order for furnishing security was passed in terms of Order XL1, rule 6, C. P. C. which provides for taking of security from the decree-holder for the restitution of any property which may be taken in execution of a decree or for payment of the value of such property. Appendix `G' to the Code of Civil Pro cedure at item No. 3 furnishes the form of such a bond. The bond taken in this case from the respondent No. 1 substantially conforms to the form provided in Appendix `G'. The surety was, therefore, liable to comply with any order of the Court that may eventually be passed against respondent No. I as a result of the reversal or modification of the decree in appeal or otherwise. Having regard to the wide terms of the bond it does not lie in the mouth of the surety now to contend that the bond was released or discharged upon the decision of the L.P.A. Under section 145, C. P. C. the surety can be proceeded against for the restitution of any property taken in execution of a decree. Clearly, therefore, the respondent No. 2 is liable jointly and severally for the restitution prayed for and I hold that the liability of respondent No. 2 is intact under the bond notwithstanding the disposal by the L. P. A. Bench. For these reasons, I reject the objection raised by the respondents.

16. The only question that remains to be considered is as to what orders be passed for restitution. The appellants have prayed for an. order directing respondent No. 1 to deposit the excess amount over Rs. 5,000 as awarded by the Supreme Court together with 13% interest with effect from 1-6-61. They have further prayed that in case of failure on the part of respondent No. 1 to deposit the amount, the same may be recovered from respondent No. 2 by attachment and sale of her property tendered under the bond. The learned Single Judge had granted a decree to the respondent No. 1 for Rs. 40,

000. The respondent had withdrawn an amount of Rs. 42,254 from the Court from which it appears that the amount over and above Rs. 40,000 must be towards the cost of the suit. The Supreme Court finally modified the decree and awarded Rs. 5.,000 to respondent No. 1 with no order as to costs. Therefore, the respondent No. 1 is liable to repay the amount of Rs. 35,000 out of the decretal amount originally awarded. However, as regards interest, the claim of the appellants is rather excessive. The appellants deposited the amount in Court voluntarily on 2-6-61 and as' stated earlier the amount was withdrawn by the respondent No. 1 on 30-1-64. At the most respondent is liable to pay interest from 1-2-64. There is no evidence as to the prevailing rate of interest or the bank rate at the relevant time. The claim at the rate of 13% is excessive and unjustified. I, therefore, order that in the first instance respondent No. 1 shall deposit Rs. 35,000 with interest at the rate of 6% per annum until the date of deposit within two months of this date. In case of his failure to do so, it will be open to the appellants to apply for an order against the respondent No. 2 in terms of their prayer in the application. Order accordingly.