*THE HON’BLE SRI JUSTICE K.G. SHANKAR +C.R.P.No.2723 of 2011 % 25.11.2011 Between: #Mohammed Abdul Sattar … Petitioner Vs. $Mrs. Shahzad Tahera and another … Respondents ! Counsel for the petitioner: Sri K.V. Satyanarayana Counsel for the Respondents: M.V. Suresh Kumar <Gist: >Head Note: ? Cases referred: 1. AIR 1994 Orissa 240 2. AIR 1995 SC 441 3. AIR 1994 SC 1591 4. AIR 1996 Bombay 48 5. AIR 1975 AP 310 6. AIR 1965 SC 1477 7. AIR 1973 AP 27 8. AIR 1922 PC 269 9. 1999 (3) SCC 115 10. AIR 2002 Orissa 101 11. AIR 2001 Rajasthan 76 12. 2005 (12) SCC 734 THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2723 of 2011 Date: 25.011.2011 Between: Mohammed Abdul Sattar … Petitioner AND Mrs. Shahzad Tahera and another … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2723 of 2011 ORDER: Several questions of law arise for consideration in this revision laid under Section 115 of the Code of Civil Procedure (CPC, for short). What is the date of the decree for the purpose of the Order 21 Rule 22 CPC, when the appellate Court dismissed the appeal by default, thereby confirming the decree of the trial Court? Whether a revision u/s.115 CPC lies from an order passed in an execution application u/s.144 CPC? How should affixture of service of notice be effected and what is the effect of such an affixature? What is the subtle distinction between Section 115, CPC and Article 227, Indian Constitution? These are some of the questions, which arise for consideration in this revision. 2. The revision, however, runs in a narrow compass in respect of the facts. The petitioner is the defendant and the judgment debtor. The respondents are the decree holders/plaintiffs. The decree holders are wife and husband. The petitioner was a tenant of the E.P. schedule premises. The respondents, who are the decree holders, filed a suit for eviction, recovery of rent and mesne profits. O.S.No.5109 of 2004 on the file of the XIX Junior Civil Judge, City Civil Court, Hyderabad was decreed on 31.12.2007. The judgment debtor/petitioner was granted three months time to vacate the premises. 3. The judgment debtor preferred A.S.No.80 of 2008 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad. Unfortunately, A.S.No.80 of 2008 was dismissed for default on 22.03.2010. The decree holders consequently filed E.P.No.64 of 2010 on 15.04.2010. The Execution Court deemed it appropriate to order notice under Order 21 Rule 22 CPC. The judgment debtor, however, did not receive the notice. The notice was merely affixed to the premises said to be the premises of the judgment debtor. Possession was delivered to the decree holders, through the proceedings in the execution petition. The judgment debtor claims that he has come to know of the same and that he consequently filed E.A.No.14 of 2011 under Sections 144 and 151 CPC for restitution. The execution Court dismissed E.A.No.14 of 2011 in E.P.No.64 of 2010 in A.S.No.80 of 2008 in O.S.No.5109 of 2004. Aggrieved by the orders in E.A.No.14 of 2011, the revision is laid. 4. Sri M.V.S. Suresh Kumar, learned counsel for the decree holders raised preliminary objections. Inter alia, he contended that only an appeal would apply from an order u/s.144 CPC and not a revision. In the alternative, his contention is that after the amendment of CPC in 2002, a revision u/s.115 CPC would not be maintainable and a revision at best could be under Article 227 of the Indian Constitution only. He also raised a contention that Section 144 CPC could be invoked on the original side and not before the execution Court. 5. Sri K.V. Satyanarayana, learned counsel for the revision petitioner countered every one of these contentions. His claim is that petition u/s.144 CPC is maintainable before the execution Court and that revision is maintainable u/s.115 CPC and in the alternative under Article 227 of the Indian Constitution. 6. Section 115 CPC was drastically amended through the extensive amendments of 2002. In fact, in the extensive and exhaustive amendments to the CPC in 1977, sub-section (2) was incorporated. It is convenient to quote entire 115 CPC for clarity and further analysis. Section 115 reads: “115. Revision.—(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where suit or other proceeding is stayed by the High Court.” 7. Prior to 1977 amendments to CPC, Section 151 CPC alone was in statute book. The High Court had powers to exercise revisional jurisdiction if any Court subordinate to it exercised jurisdiction, which did not vest in the Court or failed to exercise a jurisdiction, which vested in such a Court. The revisional Court had also power to interfere where the Subordinate Court exercised the powers vested in it illegally or with material irregularity. The CPC prior to 1977 stopped with sub-section (1). In view of innumerable decisions u/s.115 CPC, various controversies and conflicting decisions, sub-section (2) was added in 1977. It was clarified by Section 115 (2) CPC that the High Court shall not interfere with an order when an appeal lies from the impugned order either to the High Court or to the Subordinate Court. This is the point on which the learned counsel for the decree holders partly relies upon contending that the revision does not lie from the impugned order on the ground that the same is appealable. 8. As things stood thus, second series of vital and substantive amendments were incorporated to CPC in 2002. Through the 2002 amendments, a proviso was added to Section 115 (1) CPC, apart from bringing in Section 115 (3). Indeed, the proviso to Section 115 (1) existed prior to 2002. However, the proviso prior to 2002 read: “Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where— a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.” 9. Prior to the amendment, the position was that a revision would lie if the order would have finally disposed of the suit or proceedings if the order was made in favour of the revision petitioner. Further, a revision would lie if the impugned order would be tantamount to a failure of justice or irreparable injury to the party against whom such an order was made. 10. By 2002 amendment, the proviso was cut short. More or less, Clause (b) of the proviso, referred to above, was omitted retaining Clause (a) of the proviso, though it was tagged to the main proviso itself. To make legal position clear, Section 115 (3) CPC was incorporated making it clear that revision shall not operate as a stay of the suit or other proceedings, unless stay is expressly granted. Indeed, sub-section (3) of Section 115 CPC has no play in the present case, albeit the other part of Section 115 CPC needs to be considered. It is the contention of the learned counsel for the decree holders that first, an appeal ought to lie from the impugned order and that a revision consequently is not maintainable and secondly, where the execution petition has not been terminated, a revision u/s.115 IPC is not maintainable, in view of the prohibition u/s.115 (1) IPC proviso. He contended that if a revision is maintainable at all, it would be under Article 227 of the Indian Constitution and not u/s.115 CPC. The relevant portions of Article 227, which are Article 227 (1) and Article 227 (2), are: “227. Power of superintendence over all courts by the High Court.—(1) Every High court shall have superintendence over al courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of te foregoing provisions, the High Court may— (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) …………………. (4) ………………….” 11. Clause (2) more or less runs analogous to Section 115 CPC. It has wider powers under Clause (1) and Clause (2) of Article 227 of the Indian Constitution vis- à-vis powers vested u/s.115 CPC. Before considering the distinction between Section 115 CPC and Article 227 of the Indian Constitution relevant for the purpose of present case and the distinction thereof, I may refer to one other contention in this context that has been raised by the learned counsel for the decree holders. 12. Sri M.V.S. Suresh Kumar, learned counsel for the decree holders inter alia contended that the order u/s.144 CPC can be invoked in the original side and not on the execution side. He also contended that an order u/s.144 CPC is a decree and consequently is appealable. He, therefore, contends that a revision would not lie from an appealable order, in view of Section 115 (2) CPC. 13. Section 144 CPC deals with the principles of restitution. It reads: “144. Application for restitution.—(1) Where and in so far as a decree or an order is varied or reversed 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 in 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, reversed, 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, thee 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 of other relief which could be obtained by application under sub-section (1).” 14. Section 144 CPC was amended in 1977. It did not undergo any amendments in 2002. 15. In Puni Devli Sahu v. Jagannath Mohapatra[1], the Orissa High Court explained principles of restitution incorporated u/s.144 CPC. The Court considered that the doctrine of restitution was an equitable doctrine and that it could not be applied if it conflicts with any other rule of equity. The Orissa High Court considered that three conditions should exist for the application of Section 144 CPC viz., i) the restitution sought must be in respect of the decree or order which had been varied or reversed; ii) the party applying for restitution must be entitled to a benefit under a revising decree or order; and iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. Whether order u/s.144 CPC applies to the present case on merits shall be examined a little later. For the present part of the consideration, I may point out that the learned counsel for the decree holders contended that Section 144 CPC can be invoked with reference to proceedings in the suit and not with reference to proceedings in execution petition. 16. On the other hand, Sri K.V. Satyanarayana, learned counsel for the revision petitioner/judgment debtor contends that the impugned order is an order indeed and consequently, the provisions u/s.144 CPC would apply to the case. 17. It is the contention of the learned counsel for the petitioner that in view of the language deployed by Section 144 CPC, the principles of restitution would apply not only to decrees passed in the suits but to orders including orders passed in execution proceedings. The very beginning of Section 144 CPC is that the principles of restitution would be applicable in respect of decrees and orders. Obviously, the proceeding in an execution is an order. In E.P.No.64 of 2010, an order was passed directing the delivery of the property. The property was, consequently, delivered to the decree holders. 18. The question is whether this order of delivery of the EP schedule property in E.P.No.64 of 2010 is an order within the meaning of Section 144 CPC for the application of restitution proceedings. The learned counsel for the petitioner placed reliance upon Kavita Trehan v. Balsra Hygiene Products Ltd.[2]. In that case, the court observed that Section 144 CPC was a part of the general law of restitution and that it was not exhaustive. The court further observed that jurisdiction to order restitution was inherent in every court and should be exercised whenever justice of the case demanded. The Supreme Court further clarified that the principles of restitution would be exercised under the inherent powers of the court when the case did not strictly fall within the ambit of Section 144 CPC. The Supreme Court thus considered that proceedings u/s.144 CPC deserve to be exercised more or less liberally. The contention of the learned counsel for the decree holders that the proceedings u/s.144 CPC ought to be filed on the original side alone and the very petition in E.A.No.14 of 2011 is not maintainable and deserved to be dismissed in limini, therefore, cannot be accepted. 19. Indeed, it was observed in Neelathupara v. Moutharapalla[3] that restitution could be ordered by the court, which passed the decree or order and that the court to which the decree has been transferred for execution could not order the restitution. In the present case, the order was passed by the execution court itself. Restitution is claimed by the judgment debtor questioning the order of the execution court. Therefore, the restitution petition is maintainable before the execution court. In V.T. Hundlani v. Robert[4], an ex parte decree for eviction was set aside by an appellate court. The Bombay High Court observed that the trial Court would grant restitution to the tenant on the petition of the tenant. This decision perhaps means that it is the court, which passed the decree, which should grant restitution. However, where the possession was delivered through the execution proceedings, I consider that it is the execution court which shall have to order for the restitution. 20. This Court has clarified the conditions of restitution in Ganesh v. Adi Hindu S.S. League[5] that i) the restitution sought for must be in respect of a decree or order which had been varied or reversed, ii) the party applied for restitution must be entitled to the benefit under a reversing decree or order, and iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. The Supreme Court clarified in Mohijibhai v. Manibhai[6] that the application for restitution u/s.144 CPC is an application for the execution of a decree. That being so, obviously the execution court has jurisdiction to order for the restitution. It may be recalled that one of the grounds of attack of this revision by the decree holders is that a petition u/s.144 CPC was not maintainable before the XIX Junior Civil Judge, City Civil Court, Hyderabad as an execution court and that the petition for restitution is not maintainable on the orders in execution proceedings. For the reasons stated above, both these contentions are liable to be negatived. I regret to differ from the contention of the learned counsel for the decree holders in this regard. I am constrained to conclude that a restitution petition u/s.144 CPC is maintainable from an order passed by the execution court resulting in delivery of controversial property from the possession of the judgment debtor to the decree holders and also hold that such a restitution petition is maintainable before the execution court. 21. Now, I may return to another fundamental question raised by the learned counsel for the decree holders. It may be recalled that the decree holders contend that a revision u/s.115 IPC is not maintainable and perhaps a revision under Article 227 of the Indian Constitution is also not maintainable. His claim is that an appeal would lie from the order in E.A.No.14 of 2011 passed u/s.144 CPC. The learned counsel for the revision petitioner/judgment debtor contended that this petition was laid not u/s.144 CPC simplicitor and that E.A.No.14 of 2011 was a petition u/s.144 CPC read with Section 151 CPC and that assuming that if an order u/s.144 CPC is appealable, an order u/s.151 CPC is not appealable and consequently, a revision would lie. 22. I n State Govt. of A.P. v. M/s. Manikchand Jeevraj and Co., Bombay[7], pending the suit for declaration of title and for possession of movable properties attached by the revenue authorities, the court raised the attachment. When the suit was decreed ultimately, the Division Bench of this court observed that the court could order for restitution of the amount in favour of the plaintiff together with interest. More important, the Division Bench held that even if Section 144 CPC did not apply, the restitution could be ordered u/s.151 CPC. The Division Bench placed reliance upon an old case of the Privy Council in Jai Behham v. Kedar Nath[8], where the Court held that the proposition that restitution could be ordered either u/s.144 CPC or Section 151 CPC was well-settled. The Court merely cautioned that u/s.144 CPC the court has no alternative but to order for restitution; and that if the case fell u/s.151 CPC, a discretion is vested in the court to order restitution or otherwise. It is the contention of the learned counsel for the judgment debtor that in view of Manik Chand, assuming that restitution u/s.144 CPC is not maintainable before the execution court, the same was maintainable u/s.151 CPC and that as no appeal would lie from an order u/s.151 CPC this revision is maintainable. 23. It is pertinent to notice that it has become the practice to quote Section 151 CPC for every application whether it is an application for setting aside the ex parte order, to bring legal representatives on record, to condone the delay u/s.5 of the Limitation Act or for any other purpose. It is rightly contended by the learned counsel for the decree holders that if any order on a petition becomes revisible on the ground that the petition was u/s.151 CPC, every order and perhaps every decree also becomes revisible. He pointed out that a revision would lie only when there is no provision for appeal. In view of the language u/s.115 CPC, it is evident that where an appeal would lie, a revision cannot be maintained. 24. Regarding the application of Section 151 CPC, it perhaps should be considered whether the application falls under any provision of the Code or other enactment and whether Section 151 CPC was quoted by way of abundant caution as a safeguarding step. The pith and substance of a petition would decide whether it is a petition u/s.151 CPC or any other provision or any other provision r/w Sec.151 CPC. If such a petition is u/s.151 CPC, whether it is along with other sections or otherwise a revision would indeed lie. 25. Under Order 43 Rule 1 CPC, an order under Order 9 Rule 9 CPC or Order 9 Rule 13 CPC is an appealable order. Invariably whenever a petition is filed to set aside the default order or ex parte decree, Sec.151 CPC is also quoted along with Order 9 Rule 9 CPC or Order 9 Rule 13 CPC. Merely because Sec.151 CPC is quoted along with Order 9 Rule 9 or Order 9 Rule 13 CPC, an order does not become a revisible order on the ground that appeal does not lie from such an order. Similarly, if the petition in E.A.No.14 of 2011 were an exclusive petition u/s.151 CPC, a revision would indeed have lied, since no appeal would lie from an order in a petition u/s.151 CPC. 26. Needless to point out that an order u/s.144 CPC is a decree, in view of the definition of decree u/s.2 (2) CPC. Sec.96 CPC envisages that an appeal would lie from every decree with certain exceptions. Sec.144 CPC does not fall within the exception u/s.96 CPC. Consequently, an order in a petition u/s.144 CPC is an appealable order. There is no doubt about the law in this regard. The learned counsel for the petitioner indeed accepts that an appeal lies from an order in a petition u/s.144 CPC. His contention is that E.A.No.14 of 2011 was not an application u/s.144 CPC but was an application under Section 144 r/w Sec.151 CPC and that since appeal does not lie from an order u/s.151 CPC, the order in E.A.No.14 of 2011 is liable to be examined in the revision. 27. As already pointed out, I am afraid that merely because E.A.No.14 of 2011 is an application u/s.151 CPC along with other provision, it cannot be considered to be a petition u/s.151 CPC subjecting its orders to revision. It needs to be examined whether the petition in E.A.No.14 of 2011 is a petition u/s.144 CPC or a petition analogous to Sec.144 CPC only. The prayer in E.A.No.14 of 2011 reads: “For the reasons stated in the accompanying affidavit, it is prayed that this Hon’ble court may be pleased to restore the EP schedule property to me by giving back the possession and pass such other orders this Hon’ble court may deed fit and proper, in the interest of justice.” 28. Evidently, the petitioner seeks for restitution under this petition. I, therefore, agree with the contention of the learned counsel for the respondents that E.A.No.14 of 2011 is a petition u/s.144 CPC or is primarily a petition u/s.144 CPC. Once E.A.No.14 of 2011 is a petition u/s.144 CPC, an appeal would lie therefrom. Section 115 CPC provides for a revision where an appeal does not lie. 29. Inter alia, the learned counsel for the respondents contended that this revision