Appeals Nos 777 and 778 of 1964
Appeals by special leave from the judgment and order dated March 5 1964 of the Gujarat High Court in First appeals Nos 111 and 112 of 1960
W section Barlingay and A G Ratitaparkhi for the appellant in both the appeals
I N Shroff for the respondents 2 and 3
Sarkar J delivered a dissenting Opinion
The Judgment of Subba Rao Raghubar Dayal Ayyangar and Mudholkar JJ
was delivered by Subba Rao J Sarkar J
These appeals arise from two miscellaneous appli cations made to the trial Court which was the Court of the Civil Judge Nadiad in the State of Gujarat
One of these applications was for execution of orders for costs awarded and the other was under section 144 of the Code of Civil Procedure for restitution of money and property taken in execution of a decree reversed in appeal Me appellant is the successor in interest of the plaintiff in the suit out of the proceedings of which these appeals arise and the respondents were the defendants there
The appellant s predecessor in interest had filed the suit for possession of land against the respondents and another person now dead
The suit was decreed with costs by the trial Court on November 30 1945 but that decree was set aside on July 13 1949 439 on appeal by the defendants to the High Court of Bombay
While the appeal was pending the appellant s predecessor in interest had in execution of the decree of the trial Court obtained possession of the land and realised the costs awarded
Also pending the appeal the appellant s predecessor in interest having died the appellant was substituted in his place
After the appellate decree had been drawn up it was amended on August 24 1950 by deleting the name of one of the appellants mentioned therein being one of the defendants to the suit on the ground of his death
The appellant got leave from this Court under article 136 of the Constitution to appeal from the appellate decree but such leave was revoked on November 24 1952 as the appellant had failed to carry out the condition on which it had been granted
Thereafter on February 1 1 1 9 5 3 the respondents filed in the trial Court the application for execution for recovering the costs awarded to them in the proceedings up to the date of the revocation of leave by this Court and out of this application one of the appeals has arisen
On February 13 1953 they filed the other application under section 144 of the Code for restitution of the land taken and the costs realised from them in execution of the decree of the trial Court and out of this the other appeal has arisen
The only question argued in each appeal is whether it is barred by limitation
As regards the application for execution I agree with my learned brother Subba Rao that it is not barred by time and the appeal arising from it that is appeal No 777 of 1964 should be dismissed
On this matter I have nothing to add to what my learned brother has stated in his judgment
On the other application namely the application for restitution under section 144 of the Code I have come to a conclusion different from that of my learned brother
The question here also as I have already said is whether the application had been made beyond the time specified and was barred
The appellant who was the defendant to that application contended that an application under section 144 was not in execution and would be governed by article 181 of the Limitation Act which covers applications not specially provided for in the Schedule to that Act and not by article 182 relating to execution
The respondents who wanted the restitution contended on the other hand that the case came under article 182 as the application for it was really one in execution
Subject to certain questions which I will later discuss it is not in dispute that if article 181 applied then the application would be barred while it would not be so if the case was governed by article 182
Supp65 12 440 The question therefore in this appeal is whether an application under section 144 is an application in execution
On that question there has been a great divergence of opinion in the High Courts
It would not be profitable to refer specifically to the reasons given in these judgments in support of the views respectively adopted for these reasons will in substance all be discussed later
In my view an application under section 144 is not one for execution and I proceed now to state my reasons for that view
I suppose our first task in deciding what kind of application is contemplated in section 144 is to look at its terms
On doing so I find that no reference to execution is made in it
It is not contained in any chapter dealing with execution
It says that when a party becomes entitled to restitution as a result of a decree being varied or reversed the Court of first instance shall on his application cause restitution to be made and for this purpose the Court may the word may here clearly means shalt make any orders that may be necessary
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 is 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 me impossible looking at the terms of the section alone and without more we have no right to look at anything else to say that the application contemplated in it is one in execution
There are other reasons indicating that the application contemplated by the section is not one for execution
Thus if the application was in execution then under section 47 of the Code a suit to obtain the same relief would be barred
It would then have been unnecessary to provide by sub section
2 of section 144 that no suit shall be instituted for the purpose of obtaining restitution
Again turning to the definition of decree in section 2 sub sec
2 I find that it includes the determination of a question within section 144
This provision would be wholly unnecessary if the determination of that question was in execution proceedings for then the matter would be brought within the definition of decree by that part of it which included in it the determination of any question within section 47 which section relates to questions arising in execution
Lastly while section 144 provides that the application under it is to be made to the Court of first instance section 38 which occurs in 441 a part of the Code dealing with execution states that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution
Section 39 provides for a transfer of a decree for execution to another Court and by virtue of Or
21 r 10 the holder of a decree desiring to execute it shall if the decree has been sent to another Court apply to that Court
Under section 144 however the application had to be made to the Court of first instance
The section does not permit an application to be made to a transferee Court
This again will indicate that it was riot intended that an application under section 144 will be an application for execution
No doubt the expression Court of first Instance has to be interpreted in a general sense and would include where the Court of first instance has ceased to exist a court which then has jurisdiction over the territory in which the abolished Court functioned
Such a view was taken in Panchapakesa Aiyar vs Natesa Patharl
This however is a different matter
It was said on behalf of the respondents that section 144 of the Code of 1908 was intended to replace the analogous provisions contained in section 583 of the preceding Code of 1882 and was in effect a re enactment of the earlier provision and therefore in construing section 144 it has to be considered in what way the earlier provision namely section 583 was defective which defects the new provision intended to rectify
It does not seem to me that even this approach assists the contention that section 144 contemplates an application in execution
Section 583 expressly said that the restitution was to be obtained by way of an execution
While it is true that on various questions arising under section 583 difficulty had been felt and divergent views expressed in the High Courts there was however no doubt ever felt that the earlier section had provided for a procedure by way of execution to obtain restitution
The earlier section cannot therefore lend any support to the view that the application under the new section has to be in execution
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
With the difficulties actually felt under section 583 we are not concerned in the discussion of the present case they give no assistance in the solution of the question now before us
1 442 It was then said that if the application for obtaining restitution under section 144 was not in execution then minors and others would be deprived of the benefit of the provisions in sections 6 and 7 of the Limitation Act and the benefit of section 15 of that Act would also not be available in respect of such an application
It the language of section 144 by itself clearly indicates that the procedure is not to be by way of execution as I think it does it would not be legitimate to interpret that section in a different way because of the deprivation of the benefits under the provisions of another Act
Furthermore there will be many applications coming under article 181 of the Limitation Act other than one under section 144 of the Code where the benefits of these sections of the Limitation Act would not be avail able
The provisions in the Code of Civil Procedure which give rise to the other kinds of applications covered by article 181 of the Limitation Act cannot all be changed for conferring the benefits of sections 6 7 and 15 of that Act
Clearly the intention of sections 6 7 and 15 of the Limitation Act was that their benefit would be available only in cases coming within their terms
I am therefore unable to agree that a consideration of these sections of the Limitation Act is relevant for the present enquiry
For all these reasons I am of opinion that the application contemplated in section 144 of the Code is not one in execution and therefore it is not governed by article 182 of the Limitation Act dealing with execution but by article 181
for it is not disputed that if article 182 did not apply article 181 would
Now under article 181 the time starts to run from the date the right to apply accrues and the period provided is three years
In the present case if the right to apply accrued from the date of the appellate decree which gave rise to the right of restitution then the application for restitution would be barred for the appellate decree was passed on July 13 1949 and the application had been filed on February 13 1953
But as I have already said after the appellate decree had been drawn up it was amended on August 24 1950 by deleting the name of one of the appellants who had died
It was said for the respondents that the right to apply even if article 181 applied must be said to have accrued when the amendment was made for before then the present respondents could not apply and if time was computed from that date the application was not barred
This contention however is without foundation for under section 9 of the Limitation Act once the time starts running it does not stop to do so and there is no dispute that the time began to run from the date of the appellate decree when the right to apply first accrued
443 It was lastly contended for the respondents that time should start running from the date when this Court revoked the leave to appeal granted under article 136
There is no authority to support this contention
In the result I would allow appeal No 778 of 1964 that has arisen from Miscellaneous application No 16 of 1953 and dismiss the other appeal
Subba Rao J These appeals by special leave raise inter alia the question whether article 181 of the Limitation Act or article 182 thereof applies to an application under section 144 of the Code of Civil Procedure 1908
The facts may be briefly stated
Mohanbhai filed Special Jurisdiction Suit No 28 of 1943 in the Court of the Civil Judge Senior Division Nadiad for possession of the properties described in the Schedule annexed to the plaint from respondents Nos 1 to 5 and others
Respondents 1 to 5 claimed to be in possession of the said properties as trustees under a will executed by Mohanbhai s brother Chhabaji the other respondents are alleged to be the sevaks appointed by the respondents to administer some of the trust properties
On November 30 1945 the learned Civil Judge decreed the suit
3 of the trustees and the sevaks preferred an appeal being Appeal No 317 of 1946 to the High Court of Bombay
On November 8 1946 pending the appeal Mohanbhai obtained possession of the suit properties in execution of the decree of the trial Court he also recovered a sum of Rs 1290 3 0 from the trustees being costs awarded to him by the Trial Court
Pending the appeal Mohanbhai died and his son the present appellant was brought on record in his place
On July 13 1949 the High Court set aside the decree of the Trial Court and dismissed the suit with costs
After the appellate decree was drawn up an application was filed by the decree holders for deleting the name of appellant No 7 in the High Court on the ground of his death
On August 24 1950 the application was granted and the name of appellant No 7 therein was deleted
As the application filed by the appellant in the High Court for a certificate to prefer an appeal to this Court was dismissed on January 9 1951 he filed an application in this Court for special leave to appeal
On April 16 1952 special leave to appeal was granted to the appellant
But as he did not comply with the conditions imposed on him while granting the special leave this Court on November 24 1952 rescinded the special leave
Thereafter the respondents herein filed 2 applications in the Trial 444 Court one was Special Darkhast No 7 of 1953 filed on february 11 1953 for recovering costs of the suit the appeal and the miscellaneous applications awarded to them against the appellant and the other was Miscellaneous Application No 16 of 1953 filed on February 13 1953 under section 144 of the Code of Civil Procedure for the restitution of the estate of Chhabaji which had come into the possession of the appellant and also for the recovery of a sum of Rs 1290 3 0 paid by the trustees to Mohanbai in execution of the decree of the Trial Court
The appellant contended that both the applications were barred by limitation
The learned Civil Judge held that cl
2 of article 182 of the Limitation Act applied to the facts of the case and the period of limitation would run from November 24 1952 when this Court revoked the order granting special leave and therefore both the applications having been filed within 3 years from that date they were in time
Alternatively
he held that as the decree was amended on August 24 1950 when the name of the deceased trustee was deleted the period of limitation would run from that date under cl
4 of article 182 of the Limitation Act and therefore the two applications would be in time
In that view the Trial Court ordered execution to proceed in the said two applications
The appellant preferred an appeal to the High Court against the said order of the Trial Court
Before the High Court learned counsel for the appellant contended that in regard to the application for restitution article 181 of the Limitation Act would apply and therefore the said appli cation not having been filed within 3 years of the date of the decree was barred thereunder
Alternatively he contended that even if article 182 of the Limitation Act applied both the applications would be barred by limitation under the said Article
The High Court held that both the applications were governed by article 182 of the Limitation Act and that the period of limitation would commence to run from the date the said decree was amended on August 24 1950 when the name of the deceased trustee was deleted and that as the said applications were filed within 3 years from the said date they were within time
In that view it con firmed the ordeer of the Trial Court
Hence the appeals
Dr Barlingay learned counsel for the appellant raised before us the following two points  1 An application for restitution under section 144 of the Code of Civil Procedure is not an application for the execution of a decree and therefore the said application is not governed by article 182 of the Limitation Act which provides for a period of limitation in the case of execution of decrees but by article 181 thereof which is a residuary article of limitation
445 2As under article 181 of the Limitation Act the period of limitation of 3 years starts from the date the right to apply accrues the said application for restitution was barred by limitation as the respondents right to apply for restitution accrued to them when the appeal filed by them in the High Court was allowed on July 13 1949
He further argued that the alleged amendment dated August 24 1950 would not help the respondents as the 7th respondent 7th appellant in the High Court died after the said appeal was disposed of that is after the respondents  right to apply accrued and that the second application viz Special Darkhast No 7 of 1953 for recovery of costs was also barred by limitation under article 182 of the limitation Act as it was filed beyond 3 vears from the date of the appellate decree and that the amendment dated August 24 1950 on which the respondents relied to save the bar was only an amendment of a clerical mistake and therefore was not an amendment within the meaning of article 1824 of the Limitation Act
Mr 1
N Shroff
learned counsel for the respondents on the other hand contended that both the applications are governed by article 182 of the Limitation Act and that they are saved both under cl
2 and cl
4 of article 182 of the Limitation Act
Alternatively he argued that even if article 181 of the Limitation Act applied to the application for restitution it would be within time as the respondents right to apply accrued to them either on the date when the Supreme Court revoked the special leave granted to the appellant viz November 24 1952 or at any rate on the date when the decree was amended ie August 24 1950
We shall first take up the question of Iimitation in regard to an application for restitution
At the outset it would be convenient to read the relevant provisions of the Code of Civil Procedure and of the Limitation Act
Section 144 of the Code of Civil Procedure 1  Where 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 far as may be 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 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 446 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
The First Schedule to the Limitation Act Period Time from which Description of application of period begins Limitation to run article 181
Applications for When the right to which no period of apply accrues
limitation is provided Three elsewhere in this schedule years or by section 48 of the Code of Civil Procedure 1908
article 182For the execution Three years 1
The date of the of a decree or order of or where a decree or order or any Civil Court not certified provided for by article by copy of 2
Where there has 183 or by section 48 of the decree or been an appeal the Code Civil Procedure orders has the date of the 1908
been regis final decree tered six or order of the years
Appellate Court or the withdrawal of the appeal or 3
Where there has been a review of Judgmentdate of the decision passed on the review or 4
Where the decree has been ameended the date of ameendment or Under the said provisions if an application is one for execution of a decree Art 182 of the Limitation Act applies but if it is not an application for execution of a decree but an application for which no period of limitation is prescribed elsewhere article 181 of the Limitation Act applies
The short but difficult question is whether an application for restitution under section 144 of the Code of Civil Procedure is an application for execution of a decree
Section 144 of the Code of Civil Procedure does not say in express terms that an application for restitution is not an application for execution of a decree nor does it say that it is one for execution
So its nature can be ascertained only by construing the said statutory provision
To execute a decree is to carry into effect the terms of the decree and to restitute is to restore to a 447 party the benefit which the other party has received under a decree subsequently held to be wrong
There is no dichotomy between execution and restitution for there can be an executable decree for restitution
There is a sharp cleavage of opinion among the various High Courts on the question whether an application for restitution is one for execution of a decree or not
This shows that different views can be taken on a fair construction of section 144 of the Code of Civil Procedure
In such a case the rule of construction of a statute applicable is stated by Lord Coke which is adopted by Maxwell and it is found in Maxwell on Interpretation of Statutes 11th Edn
at p 18  To arrive at the real meaning it is always necessary to get an exact conception of the aim scope and object of the whole Act to consider according to Lord Coke  1
What was the law before the Act was passed 2
Whatwas the mischief or defect for which the law had not provided 3
What remedy Parliament has appointed and 4
The reason of the remedy
 Let us therefore approach the problem having regard to the said rule of construction
In Halsbury s Laws of England 2nd Edn Vol
14 p38 para
69 the English law on the subject is stated thus Where a wrongful or irregular execution has been set aside or where a judgment or order has been reversed 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 said passage indicates that under the English law the appellate order reversing the original one may itself contain a direction for restitution or a court may issue a separate order or a writ of restitution
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 Chowdery vs Hurro Purshad Roy Chowderyl wherein it stated the principle thus 1 1865 10 M IA203211 448   this rule of law rests as their Lordship 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 pro ceeding
If it has been so reversed or superseded the money recovered under it ought certainly to be refunded and as their Lordships conceive is recoverable either by summary process or by a new suit or action
The true question therefore in such cases is wether the decree or judgment under which the money as originally recovered has been reversed or superseded and applying this test to the present case their Lordships are oil opinion that the decrees obtained by Tara Pushad against Doogra 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
 Though this passage relates to supersession of a decree not in an appeal against that decree but by the Privy Council in a collateral proceeding the Judicial Committee made it clear that the rights and liabilities of parties should be dealt with only under the decree superseding the earlier decree and it further restated the Englisg principle that restitution could be made either by a summary process or by a new suit or action
The Code of Civil Procedure 1882 for the first time introduced section 583 providing for restitution
That section read  When a party entitled to any benefit by way of restitution or otherwise under a 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 hereinbefore prescribed for the execution of decrees in suits Under this section any party entitled to any benefit under a decree passed in an appeal could file an application in the Court which passed the decree against which the appeal was preferred for the purpose of executing the appellate decree
The crucial words of 449 the section were benefit by way of restitution or otherwise under a decree
Did those words mean that an appellate decree should expressly contain a direction for restoration of any property taken by the respondent in execution of the decree of the first Court or did they include any benefit to which the decree holder would be entitled as a consequence of that decree of reversal It was held that under that section a party would be entitled to restitution though restitution was not expressly provided for by the decree see Balvantrav vs Sadrudin1 and Rohini Singh vs Hodding2 A bare perusal of the section indicates that an application for restitution under the said section was an application for execution of an appellate decree
The Privy Council in Prag Narain Kamakhia Singh3 held that a separate suit would not lie and the relief provided by the said section could be obtained only under section 583 and section 244 of the Code of Civil Procedure in execution proceedings
An application made to obtain restitution under a decree in accordance with section 583 of the Code of Civil Procedure 1982 being a proceeding in execution of that decree it was held by all the High Courts except one that proceedings by way of restitution were proceedings for execution within the meaning of article 179 of the Limitation Act 1877  see Venkayya vs Raghavacharlu4 Nand Ram vs Sita Ram5 and Jeddi Subraya Venkatesh Shanboah vs Ramrao Ramchandra Murdeshvar6
There was so conflict on the question whether mesne profit for the period of dispossession of the party could be recovered only under the said section or by a regular suit
The legal position under section 583 of the Code of Civil Procedure 1882 may be stated thus  The benefit accrued to a party under an appellate decree could be realized by him by executing the said decree through the Court which passed the decree against which the appeal was preferred
The appellate Court which set aside or modified the decree of the first Court could give a direction providing for restitution
Even if it did not expressly do so it should certainly be implied as the appellate Court could not have intended otherwise
The setting aside of the decree itself raised the necessary implication that the parties should be restored to their original position
Be that as it may Courts understood the provision in that light and held that such a decree was executable as if it contained such a direction
Such an application was governed by article 179 of the Limitation Act 1887 1 Bom
2 Cal
3 All 551 PC
4  5 All 545
6 Bom
450 corresponding to article 182 of the present Act
No suit lay for the relief of restitution in respect of such a benefit the same being held by the Privy Council to be barred by section 244 of the Code of Civil Procedure corresponding to the present section 47 of the Code
But the terms of the section were only confined to a party entitled to a benefit by way of restitution or otherwise under a decree passed in an appeal and not under any other proceeding
With this background the Legislature in passing the Code of Civil Procedure 1908 introduced section 144 therein
The said section is more comprehensive than section 583 of the Code of 1882
Section 144 of the present Code does not create any right of restitution
As stated by the Judicial Committee in Jai Berham vs Kedar Nath Marwaril It is the duty of the Court under section 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
 The section to avoid the earlier conflict prescribes the procedure defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under this section
The section does not either 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 new Procedure Code was enacted was an application for execution should be treated as an original petition
Whether an application is one 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 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 1 1922 LR 49 IA 351 355
451 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
Now let us consider the arguments pressed on us for taking the contrary view
It is said that when an appellate Court makes a decree setting aside the decree of the first Court without providing for restitution there is no executable decree for restitution
But this argument concedes that if the appellate Court provides for restitution an application for restitution will be an application for execution of a decree
Even if it is an execution application the procedure to be followed and the power of the Court to order a restitution would be confined to section 144 of the Code
Therefore an execution application for restitution would be governed by section 144 of the Code of Civil Procedure
If the argument of the learned counsel for the appellant be accepted it will lead to inconsistent positions depending upon whether the appellate decree gave a direction for restitution or it did not
If it did not the application would become an original petition if it did it would be an execution application
This inconsistency can be avoided if such a direction for restitution be implied in every appellate decree setting aside or modifying the decree of the lower Court even if it does not expressly give such a direction
The second objection is that if the view of the High Court is correct section 144 would become redundant as section 47 of the Code covers the same field
Even under the Act of 1882 there were two sections namely section 583 corresponding to some extent to section 144 of the present Code and section 244 corresponding to section 47 of the present Code
Even so there was a conflict under the old Code as regards the scope of restitution and also as regards the question of the bar of a suit in a civil Court
Section 144 was enacted to avoid the conflict to clarify the doubts and to define the powers of the Court
Sub section 2 of section 144 of the Code of Civil Procedure 1908 was enacted to obviate any further debate on the question of bar of a suit
The next criticism is that while execution proceedings are confined to Part 11 and Order XXI of the Code of Civil Procedure the Legislature presumably to make it clear that an application for restitution is not an execution application placed it in Part XI thereof under the heading Miscellaneous
The placing of a particular section in a Part of the Code dealing with a specific subject matter may support the contention that section deals 452 with a part of the subject dealt with by that Part but that cannot be said when a particular section appears under a Part dealing with miscellaneous matters
The Part under the heading Miscellaneous indicates that the sections in that Part cannot be allocated wholly to a Part dealing with a specific subject for the reason that the sections entirely fall outside the other Parts or for the reason that they cannot entirely fail within a particular Part
They may have a wide scope cutting across different parts dealing with specific subjects
Section 144 may have been placed in Part Ill as relief of restitution may cover cases other than those arising in execution of a decree of an appellate Court setting aside the decree of a Court under appeal
Indeed there is a conflict on the question whether 144 applies to an order setting aside an ex parte decree to a decree setting aside another decree in a collateral proceeding and to dependent decrees etc
That apart even under the earlier Code section 583 was not placed in the chapter dealing with execution but only in the chapter dealing with appeals
Indeed some of the sections in Part XI partly deal with execution a matters  see sections 1322 1353 135A etc
The fact that a section has been placed in a particular Part for convenience of arrangement cannot affect the question if in reality the application is one for execution  at the most it is only one of the circumstances relevant to the present enquiry it is lot decisive of the question one way or other
Nor can we accept the argument that if an application under section 144 of the Code of Civil Procedure is an application for execution it will be inconsistent with section 38 of the Code
Under section 144 an application can be filed only before the Court of the first instance whereas under section 38 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 decrees 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 the execution of the decree would have jurisdiction to try such suit
It is therefore clear 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
A combined reading of 453 sections 37 and 38 indicates that the Court of first instance is the Court which passed the decree within the meaning of s 38 and therefore an application for execution of the decree can be filed therein
If the Court of first Instance is deemed to be the Court which passed the decree we do not see any difficulty in holding that the aid Court can transfer the decree under section 39 of the Code
The contention that the determination of a question under section 144 of the Code is included in the definition of a decree under section 22 of the Code has also no relevance to the question before us
The said definition takes in both an order made under section 47 and that made under section 144 of the Code
The said two sections are included for the purpose of giving a right of appeal
If an execution application to which 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 cease to be one for the reason that the said section is included in the definition of decree
If the argument of the appellant be accepted it will lead to many anomalies
If a respondent in the appeal did not execute the decree in his favour and the appeal was dismissed the period of limitation for executing the decree would be governed by article 182 of the Limitation Act whereas if he executed the decree and had illegally taken the property from the appellant though the appeal was allowed the period of Limitation for restitution would be governed by article 181 of the Limitation Act
If the appellate Court gave a direction in the decree for restitution the period of limitation for executing the decree would be governed by article 182 of the Limitation Act whereas if no such direction was given it would be governed by article 181 thereof
Where an appellant was a minor or under a disability he could not take advantage of the periods of extension provided under sections 6 and 7 of the Limitation Act though the appeal was allowed in his favour by filing an application for restitution whereas if the appeal was dismissed the respondent if he happened to be a minor or under a disability would get the extension for executing the decree
If an application for restitution was not an application for execution of a decree and if the restitution was stayed by a second appellate Court under section 15 of the Limitation Act the time during which the party was prevented from applying for restitution could not be excluded even if ultimately the appeal was dismissed with the result the application for restitution would get barred
The construction suggested by the learned counsel for the appellant will lead to 454 the said anomalies
The existence of anomalies may have no relevance when a provision of a statute is clear and unambiguous but it will certainly have a bearing when the section is ambiguous
As we have already indicated there are strong currents of judicial opinion expressing conflicting views on the construction of section 144 of the Code of Civil Procedure
The Madras High Court in Somasundaram vs Chokkalingam1 and Chittoori Venkatarao vs Chekka Suryanarayana 2  the Bombay High Court in Kurgodigouda vs Ningangouda 8 and Hamidalli vs Ahmedalli 4  the Patna High Court in Bhaunath vs Kedarnath5 the Chief Court of Oudh in Chandika vs Bital6 the Rangoon High Court in AMKCT Muthuukarauppan Chettiar vs Annamalai7 the High Court of Travancore Cochin in Kochu Vareed vs Mariyam8 and the Madhya Pradesh High Court in Choudhary Hariram vs Pooran Singh9 held that an application under section 144 of the Code of Civil Procedure was an application for execution of a decree while it had been held by the High Court of Allahabad in Parmeshwar Singh vs Sitaldin Dube and other cases the Calcutta High Court in Sarojebhushan vs Debendranath11 and Hari Mohan Dalal vs Parmeshwar Shau12 and other cases the Nagpur High Court in Khwaja Allawali Kesarimal13 and the Punjab High Court in Mela Ram vs Dharam Chand and Amrit Lal14 that it was not an application for execution
We have gone though the judgments carefully and we have derived great assistance from them
If we are not dealing with each of the cases specifically it is only because we have practically dealt with all the views
We realize that the opposite construction for which the appellant contended is also a possible one but it ignores the history of the 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 construc tion 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 1 Mad
2 ILR 3 Bom
4 Bom
5 Pat
411 FB
6 Luck
7 Rang
8 AIR 1952 TC 40
9 AIR 1962 MP 295
10 All 26 FB
11 Cal
12 Cal
13 ILR 14 1958 ILR Xi 1 Punj
407FB 455 legal position by innumerable successful appellants within the jurisdiction of the said High Courts 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 the 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 1824 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 rights 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 cl
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 Sup65 13 456 clearly within time
In the result the appeals fail and are dismissed with cost
ORDER In accordance with the Opinion of the Majority the Appeal is dismissed with costs


Summary:
The appellant filed a suit for recovery of certain properties from the respondents
The suit was decreed by the trial court The respondents appealed to the High Court but pending the appeal the appellant in execution of the decree of the trial court obtained possession of the suit properties and recovered the costs awarded
Only July 13 1949 the High Court set aside the decree of the trial court and on August 24 1950 the appellate decree was amended by deleting the name of one of the decree holders from the decree
The respondents filed two applications one on February 11 1953 for costs and the other on February 13 1953 for restitution of the properties and costs paid under section 144 of the Civil Procedure Code 1908
The trial court ordered execution to proceed and on appeal the High Court confirmed the order
In the appeal to the Supreme Court it was contended that i the application for recovery of costs was barred by limitation under article 182 of the Limitation Act 1908 as it was filed beyond 3 years from the date of the appellate decree and ii the application for restitution was not an application for execution and was therefore governed by article 181 of the Limitation Act and as the period of limitation of 3 years under that article starts from the date when the right to apply accrues the application for restitution was also barred by limitation
HELD by Full Court i The execution application for the recovery of costs was within time
439 E 455 H By the amendment of August 24 1950 the name of one of the decree holders was struck out from the decree and the result was to that extent the rights of the parties were modified by the amended decree
it was therefore
a case where the decree has been amended within the meaning of article 1324 of the Limitation Act and the application for execution could be filed within 3 years from the date of the amendment
455 G ii Per Subba Rao Raghubar Dayal Rajagopal Ayyangar and Mudholkar JJ  On a fair construction of the provisions of section 144 of the Code an application for restitution must be held to be one for execution of a decree and having been filed within 3 years from the date of the amended decree was within time
455 B H Having regard to the history of the section there is no reason why such an application should not be treated as one for execution of the appellate decree
The object of the section is to make the scope of restitution clear and unambiguous
It does not say that an application for restitution which till the Code of 1908 was enacted was an application for execution should be treated as an original petition
Whether an application is one for execution of a decree or in 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 it back by 437 reason of the appellate decree in his favour he is not initiating any original proceeding but is concerned only with the working out of the appellate decree in his favour
450 E H 451 A it would be inconsistent to hold that an application for restitution would be an original petition if the appellate decree did not give a direction for restitution and that it would be an execution application if it did
Such an inconsistency could be avoided if a direction for restitution were implied in every appellate decree setting aside or modifying the decree of the lower court
451 C E The existence of section 47 in the Code would make section 144 redundant
The latter section was enacted to prescribe the procedure define the powers of the court and expressly bar the maintainability of a suit in respect of a relief obtainable under it
451 E G The fact that the section has been placed in the Miscellaneous part of the Code for convenience of arrangement cannot affect the question if in reality the application for restitution is one for execution  at the most it is only one of the circumstances relevant to the enquiry and it is not decisive
452 D E Merely because under section 144 the application has to be filed in the court of first instance and under section 38 a decree may be executed both by the Court which passed if  or by the court to which it is sent for execution
 an application under section 144 does not ease to be one for execution
For under section 37 the expression Court which passed a decree includes the Court of first instance when the decree to be executed has been passed in the exercise of appellate jurisdiction
452 E G If an execution application to which section 47 applies does not cease to be an execution application by reason of the section being included in the definition of a decree under a 22 an execution application under section 144 cannot likewise cease to be one for the reason that the said section is included in the definition of decree
The two sections were included only for the purpose of giving a right of appeal
453 C D To construe an application for restitution as not one for execution would lead to anomalies specially under sections 6 7 And 15 of the Lemitation Act
The existence of anomalies may have no relevance when a provision of a statute is clear and unambiguous but will certainly have a bearing when the section is ambiguous
Further in a procedural matter pertaining to execution when a section yields to two conflicting constructions the court should adopt a construction which maintains rather their disturbs the equilibrium in the field of execution
453 H 454 A F Per Sarkar J dissenting  The application under section 144 is not one in execution and therefore would not be governed by article 182 of the Limitation Act but by article 181
Since under article 181 time starts to Tun from the date the right to apply accrues and the period provided is three years the application for restitution would be barred
442 D F Apart from the fact that the application is not described as one in execution the provision in the section for the making of an order for the purpose of effecting restitution would lead to the conclusion that it is this order that is to be executed for obtaining restitution and therefore the earlier application resulting in such order could not be one for execution
440 D E if the application under section 144 is one for execution then the proion in the section that no suit shall be instituted for the Purpose of obtaining restitution and the inclusion of the determination of a question under section 144 within the definition of decree in section 22 would be unnecessary because of section 47
The latter ion which relates to questions arising in 438 execution bars a suit to obtain the same relief and the determination of any question under that section is included within the definition of decree
440 F H Further under a 144 the application has to be made to the Court of first instance and not to a transferee court whereas under sections 38 and 39 and OXXI r 10 the holder of a decree desiring to execute it shall apply to the court to which the decree has been sent for execution
441 A C While the section 583 of the Code of 1882 expressly provided that restitution would be by way of execution section 144 of the Code of 1908 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
441 F G If the language of the section by itself clearly indicates that the procedure is not to be by way of execution it would not be legitimate to interpret the section in a different way because of the deprivation of the benefits under sections 6 7 and 15 of the Limitation Act
442 B It cannot be said that the right to apply for restitution accrued when the appellate decree was amended for under section 9 of the Limitation Act case began to run from the date of the appellate decree when the right to apply first accrued
442 H