Civil Revision No. 337 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 337 of 2008 Date of decision: 31.07.2009 The State of Punjab and another ....Petitioners versus Union Bank of India ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. R.L. Gupta, Addl. A.G., Punjab. Mr. Kamal Satija, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 23.10.2007, passed by the learned Civil Judge (Junior Division), Chandigarh, dismissing an application for restitution moved under Section 144 of the Code of Civil Procedure. The Union Bank of India succeeded in a suit for recovery against the State of Punjab, and a decree was passed in favour of the Union Bank of India on 22.9.1984. The petitioner-State of Punjab filed an appeal against the judgment and decree passed by the learned trial Court. However, as no stay was granted, therefore, the decretal amount was deposited with the learned Executing Court, which was withdrawn by the decree-holder. The appeal filed against the judgment and Civil Revision No. 337 of 2008 -2- decree was allowed on 8.12.1994. The petitioners herein then filed an application under Section 144 of the Code of Civil Procedure, for restitution of the amount paid by the petitioners under the decree. The application was contested on the plea, that the decree was sought by the respondent-Bank to meet the claim of customer to whom the amount was paid. The learned Executing Court did not go into the merits of the controversy, and dismissed the application by holding it to be time barred. The Court took note of the fact, that the decree passed in favour of the bank was dated 22.9.1984, whereas the judgment and decree passed by the learned Additional District Judge, Chandigarh, vide which the decree passed by the learned trial Court was set aside, was that of 8.12.1994. The learned Executing Court held, that the cause of action accrued to the petitioners in the year 1994, whereas the application for restitution was moved after a period of seven years, which is beyond the period of limitation. The plea of the petitioners, that they had no knowledge of the decree passed by the learned appellate Court, was rejected in view of the fact that on an earlier occasion, the application moved by the petitioners was dismissed in default on 5.11.1997. The order passed by the learned Executing Court is challenged by the petitioners primarily on the ground, that the application moved in the year 2001 was not time barred. The Civil Revision No. 337 of 2008 -3- contention raised is, that an application under Section 144 CPC for restitution was to be treated as an application for execution of the decree and the period of limitation is 12 years, from the date of order. In support of this contention the learned Additional Advocate General, Punjab, placed reliance on the judgment of the Hon'ble Supreme Court in Mahijibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and others, AIR 1965 Supreme Court 1477, wherein the Hon'ble Supreme Court has been pleased to lay down as under: - “Per Majority (Sarkar, J. dissenting): An application for restitution under S. 144, C.P.C. is an application for execution of a decree and, therefore, such application is governed by Art. 182, Limitation Act and not by Art. 181 of the Limitation Act which is a residuary article of limitation. AIR 1917 Mad 185 and AIR 1943 Mad 248 and AIR 1917 Bom 210 and AIR 1921 Bom 67 and AIR 1934 Pat 246 (2) (FB) and AIR 1931 Oudh 51 and AIR 1933 Rang 180 and AIR 1952 Trav-Co 40, and AIR 1962 Madh Pra 295, Approved. AIR 1934 All 626 (FB) and AIR 1932 Cal 308 and AIR 1928 Cal 646 and AIR 1947 Nag 239 and AIR 1958 Punj 132 (FB), Overruled. Section 144 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 Civil Revision No. 337 of 2008 -4- 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 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 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. AIR 1922 PC 269, Rel. on. Section 144 may have been placed in Part XI under the heading “Miscellaneous” 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. 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 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 Civil Revision No. 337 of 2008 -5- miscellaneous manners. 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 fall within a particular part. The argument, that if an application under S. 144 is an application for execution it will be inconsistent with S. 38, C.P.C., cannot be accepted. 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, C.P.C. 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 decree within the meaning of S. 38, and, therefore, an application for execution of the decree can be filed therein. When the Court of first instance is deemed to be the Court which passed the decree, there is no difficulty in holding that the said Court can transfer the decree under S. 39 of the Code. The definition and decree under S. 2 (2) takes in both an order made under S. 47 and that made under S. 144 of the Code. The two sections are included for the purpose of giving a right of appeal. If an execution application to which S. 47 applies does not cease to be an execution application by reason of the section being included in the definition of “decree” an execution Civil Revision No. 337 of 2008 -6- application under S. 144 cannot likewise cease to be one for the reason that the section is included in the definition of decree.” In view of the authoritative pronouncement of the Hon'ble Supreme Court, the impugned order cannot be sustained. Consequently, the impugned order is set aside and the case is remanded back to the learned Executing Court for adjudication of the application moved under Section 144 of the Code of Civil Procedure, on merits. Parties through their counsel are directed to appear before the learned Executing Court on 31.8.2009. (Vinod K. Sharma) Judge July 31, 2009 rs