1 wp-6616.10oj Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6616 OF 2010 Mr. Sudhir Ramjibhai Ghedia. .. Petitioner Vs Mr. Navnath Babanrao Indulkar & Ors. .. Respondents -- Shri G.S. Godbole i/by Shri B.B. Parekh for the Petitioner. Shri A.S. Desai for Respondent Nos.1 and 2. -- CORAM : A.S.OKA, J. DATE : 24TH AUGUST, 2010 ORAL JUDGMENT : . By this Writ Petition under Article 227 of the Constitution of India, the Petitioner has taken an exception to the judgment and order dated 30th June, 2010 passed by the learned President of the Maharashtra State Co-operative Appellate Court. 2. The present Petitioner filed a dispute under Section 91 of the Maharashtra State Co-operative Societies Act, 1960 ( hereinafter referred to as “the said Act”). A prayer in the dispute was for a declaration that he continues to be a member of the 3rd Respondent Co-operative Society and is entitled to hold flat No.201/A in the building of the said society. A prayer for eviction of the 1st and the 2nd Respondents was made in the said dispute. The contention of the Petitioner was that the said Respondents are 2 wp-6616.10oj unauthorized occupants in the said flat. The dispute was finally decided on 25th October, 2007 by the learned Judge of the Co-operative Court by passing an award. By the said award, the 1st and 2nd Respondents herein were directed to hand over possession of the said flat to the Petitioner. On the basis of the certificate issued by the learned Judge of the Co-operative Court, the award was executed by filing execution application on the original side of this Court and the Petitioner was placed in possession. There was an appeal preferred by the 1st and the 2nd Respondents against the said award. The learned Member of the Co-operative Appellate Court partly allowed the appeal by setting aside the award and by remanding the dispute to the co-operative Court. On the basis of the said judgment and order, the 1st and the 2nd Respondents applied before the Co-operative Court for restitution under Section 144 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ). 3. It must be stated here that the said application was rejected by the Co-operative Court. The Co-operative Court held that it had no jurisdiction to set aside order of this Court in the execution. Therefore, an appeal was preferred before the Co-operative Appellate Court. By the impugned judgment and order dated 30th June, 2010, the order of the Co- operative Court was set aside and restitution was ordered. The order of restitution passed by the Co-operative Appellate Court is subject matter of challenge in this Writ Petition under Article 227 of the Constitution of India. 3 wp-6616.10oj 4. The learned counsel appearing for the Petitioner pointed out that as the Co-operative Court has no power to execute the impugned award, the same was executed by filing an execution application on the original side of this Court. He submitted that it is well settled position of law that an application under Section 144 of the said Code is a proceeding in execution. He relied upon a decision of the Constitution Bench of the Apex Court in the case of Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai & Ors., ( AIR 1965 SC 1477 ) in support of the said submission. He invited attention of the Court to the majority view in the said decision which holds that the application for restitution is an application for execution of the decree. His submission is that as the application is essentially an application relating to the execution of the decree/award, the same can be entertained only by the Court which executed the award. He, therefore, submitted that only this Court on the original side has jurisdiction to entertain and try the application under Section 144 of the said Code and the Co-operative Court lacks inherent jurisdiction to entertain and try such application. He pointed out that the decision of the Apex Court in the case of Neelathupara Kummi Seethi Koya Phangal (dead) by L.Rs. v. Montharapalla Padippua Attakoya & Ors., ( AIR 1994 SC 1591) is a decision rendered by a bench of two Hon’ble Judges and the said decision does not consider the decision of the larger bench in the case of Mahijibhai Mohanbhai Barot (supra) and therefore, the said decision cannot be read as a binding precedent. In any event, he pointed out that the said decision in the case of Neelathupara Kummi Seethi Koya Phangal ( supra) has been 4 wp-6616.10oj explained by Karnataka High Court in the case of Mohammed Raza Ali v. Smt. Zareen Taj Begum & Anr., ( AIR 1996 Karnataka 274 ). He pointed out that after considering the said decision, Karnataka High Court has held that the application under Section 144 of the said Code is maintainable before the Executing Court in as much as in exercise of powers under Section 144 of the said Code, the Court is required to undo what has been done by the Executing Court. He submitted that the decision relied upon by the 1st and the 2nd Respondents in the case of the State Bank of Saurashtra v. Chitranjan Rangnath Raja & Anr., ( AIR 1980 SC 1528 ) cannot be read as a binding precedent in the light of the decision of a larger bench of the Apex Court. He submitted that amendment carried out to Section 144 of the said Code in the year 1976 is only clarificatory in nature and even prior to the amendment, section provided that the application for restitution will lie before the Court of the first instance. He submitted that Section 144 has been interpreted by the larger bench of the Apex Court. He pointed out that the learned President of the Co-operative Appellate Court has completely ignored that the 1965 decision is of the larger bench of the Apex Court. He pointed out that the learned President of the Co- operative Appellate Court has committed an error by observing that 1994 decision in the case of Neelathupara Kummi Seethi Koya Phangal ( supra) is of a bench consisting of five Hon’ble Judges. He, therefore, submitted that the impugned judgment and order is illegal and perverse and the same is required to be set aside as the Co-operative Court does not have jurisdiction to entertain and try the application under Section 144 of the said Code. 5 wp-6616.10oj 5. I have given careful consideration to the submissions. The petitioner has not disputed that Section 144 of the said Code is applicable. Section 144 of the said Code reads thus:- “144. Application for restitution.- (1) Where and in so far as a decree [or an order] is [varied or reverse in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order ] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree [or order ] or [such part thereof as has been varied, reverse, set aside or modified ] 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, reversal, setting aside or modification of the decree or order]. [Explanation. - For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include, - (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.] 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).” 6 wp-6616.10oj 6. Explanation to the said Section has been added by a Code of Civil Procedure (Amendment) Act, 1976. Clause (a) of the explanation provides that the Court which passed a decree or order shall include the Court of first instance when the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction. Going by the explanation, the Court of first instance in the present case will be the Co-operative Court whose award has been reversed in exercise of appellate jurisdiction by the learned Member of the Appellate Court. It must be noted here that when the case of Mahijibhai Mohanbhai Barot (supra) was decided, the explanation to Section 144 of the said Code was not on a statute book. The sub-section (1) of Section 144 of the said Act at that time was reading as under :- “144(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 which are properly consequential on such variation or reversal.” By 1976 amendment, the words “Court of first instance” were deleted and power was conferred on the “Court which passed the decree or Order”. The Apex Court in the case of Mahijibhai Mohanbhai Barot (supra) was 7 wp-6616.10oj considering a question as to whether Article 181 or 182 of the Limitation Act, 1963 will apply to an application under Section 144 of the said Code. In the context of the applicability of the relevant provision of the Limitation Act, the Apex Court held that the application under Section 144 is in the nature of proceeding in execution. One of the contentions raised before the Apex Court was that if such view is taken, the same will be inconsistent with Section 38 of the said Code. In Paragraph 27, the Apex Court held the same context and held thus:- “27. Nor can we accept the argument that if an application under S. 144 of the Code of Civil Procedure is an application for execution, it will be inconsistent with S. 38 of the Code. Under S. 144 an application can be filed only before the Court of the first instance, whereas under S. 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 S. 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 Ss. 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 Court which passed the decree, we do not see any difficulty in holding that the said Court can transfer the decree under 8 wp-6616.10oj S. 39 of the Code.” Thus, even going by Paragraph 27 of the decision of the Apex Court in Mahijibhai Mohanbhai Barot (supra), it cannot be said that the Court of first instance is the Court which actually executed the decree. Moreover, after 1976 amendment, an application for restitution is required to be filed with “the Court which passed the decree” within the meaning of the explanation added to the sub-section (1). In view of clause (a) of the sub- section (1) of Section 144, in the present case, the Court which passed the decree is the Co-operative Court. On this aspect, it will be necessary to consider a decision of the Apex Court in the case of State Bank of Saurashtra (supra). In Paragraph 23 of the said decision, the Apex Court held thus:- “23. The limited question is whether this Court can grant restitution. Prior to Amendment Act, 1976, an application for restitution under S. 144 in all cases had to be made to the Court of first instance. Even since the amendment the substituted expression ‘the Court which passed the decree or order’ would as per clause (a) of the Explanation, mean the Court of first instance because the expression ‘the Court which passed the decree or order’ has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial Court, i.e. The Court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation clause (a) of the Explanation would be attracted and an application for restitution will have to be made to the Court of first instance, i.e. the court of Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a court does not exist. Therefore, it would not be proper 9 wp-6616.10oj for this Court to direct restitution. However, there will be no justification for the appellant Bank to withhold the amount which was collected from the surety on a mere demand. Therefore, an application for restitution made by the surety would not lie to this Court and it would stand disposed of accordingly. Appeal dismissed.” ( underline supplied) 7. In view of what is held by the Apex Court in the aforesaid decision which considers amended Section 144, the decision of the Karnataka High Court in the case of Mohammed Raza Ali (supra) will not help the Petitioner. On plain reading of Section 144(1) of the said Code along with Explanation to sub-section (1) of Section 144 of the said Code which was not on the statute book when the case of Mahijibhai Mohanbhai Barot (supra) was decided, in the present case the Court which passed the decree/award is the Co-operative Court and the fact that the said Court has not executed the said award is of no consequence for deciding the issue of forum for filing an application under Section 144 of the said Code. 8. In view of the aforesaid discussion, the submission made by the learned counsel appearing for the Petitioner that the application under Section 144 of the said Code was maintainable only before the Court which executed the decree/award cannot be accepted. Though, the impugned judgment of the learned President of the Co-operative Appellate Court may not be happily worded, the legal position is crystal clear. 10 wp-6616.10oj 9. Apart from this, it is an admitted position that the Petitioner was placed in possession of the flat on the basis of an award which has been now set aside. 10. Therefore, no interference is called for in writ jurisdiction. The writ petition is accordingly rejected. 11. On the prayer made by the learned counsel appearing for the Petitioner, it is directed that the Petitioner shall not be dispossessed for a period of four weeks from today subject to condition that the Petitioner will not create any third party rights and will not part with possession of the said flat. (A.S.OKA, J)