C.R. No.4376 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.4376 of 2003 Date of Decision: 26.3.2008 Gajinder Singh and others .....Petitioners Vs. State of Haryana ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Ranjit Saini, Advocate for the petitioners. Mr. Ajay Chaudhary, DAG, Haryana. RAJIVE BHALLA, J (Oral) Challenge in this revision petition is to orders dated 7.1.2002 and 11.12.2002 passed by the Civil Judge (Junior Division) Karnal, and the learned Additional District Judge, Karnal respectively. The State of Haryana, purchased 46 Kanals 6 Marlas of land, in village Moja, Kabulpur, Tehsil Assandh, Distt. Karnal, vide registered sale deed dated 31.3.1959 from the petitioners and their predecessors. In the year 1971, the petitioners, challenged the execution of the sale deed by filing a suit for declaration and possession. An ex-parte decree was passed against the State of Haryana on 7.5.1971. In execution of the decree, possession was delivered to the petitioners on 9.5.1973. The petitioners thereafter, claim to have sold the property to Amrik Singh etc. on 8.1.1975. The State of Haryana, filed an application, under Order 9 Rule C.R. No.4376 of 2003 2 13 of the C.P.C., praying that the ex-parte decree be set aside. The Sub- Judge, Ist Class, Karnal dismissed the application on 27.8.1980 and the District Judge, Karnal dismissed the appeal on 21.4.1981. Civil Revision No.1971 of 1981, filed by the State of Haryana, was however allowed vide order dated 19.11.1984 and the ex-parte judgement and decree were set aside. The petitioner's suit was dismissed in default on 29.8.1985. An application for restoration of the suit was also dismissed in default on 15.11.1985. An application for restoration of the aforementioned application was dismissed in default on 9.9.1987. In the meantime, the State of Haryana, filed an application dated 9.6.1988, praying for restitution, by restoration of possession and grant of mesne profits for the illegal use and occupation of its property. It appears that during the pendency of these proceedings, possession was restored to the State of Haryana, in the year 2000. The Civil Judge (Junior Division), Karnal, vide order dated 7.1.2002, allowed the application for mesne profits/damages/compensation and directed the petitioners to pay a sum of Rs.3,76,343.44 paise. Aggrieved by the aforementioned order, the petitioners filed an appeal, which was dismissed by the Additional District Judge, Karnal on 11.2.2002. Hence, the present revision petition. Counsel for the petitioners submits that the word `mesne profits' as defined in Section 2(12) of the C.P.C., requires that mesne profits can only be awarded against a person, who is in wrongful possession. As the petitioners were in possession, pursuant to possession delivered , in execution of a decree, the learned trial Court, committed an error of law in directing the petitioners to pay mesne profits. C.R. No.4376 of 2003 3 Another contention, pressed into service is that the limitation for filing an application for restitution is 3 years. The application for restitution was barred by limitation, as it was filed on 9.6.1988 i.e. more than 4 years after the ex-parte judgement and decree was set aside on 19.11.1984. It is further submitted that as per Order 20 Rule 12(1)(c) (iii), mesne profits can only be granted for a period of three years but the Courts below have granted mesne profits from 1973 to the year 2000. Counsel for the respondent, submits that proceedings for restitution are in the nature of execution proceedings. Limitation would, therefore, be governed by Article 136 of The Limitation Act, 1963 (herein after referred to as `the Limitation Act'). Reliance is placed upon Mahijibhai, Mohanbhai Barot V. Manibhai and others, AIR 1965 S.C. 1477, Chander Kali Bai and others Vs. Jagdish Singh Thakur and another, AIR 1977 SC 2262 and South Eastern Coalfields Ltd. V. State of M.P. and others, AIR 2003 S.C 4482. It is further submitted that the word `mesne profits' in Section 144 of the Code, is preceded by the words damages and compensation and even if the petitioner was in possession by way of a valid decree, the petitioner would not be entitled to any relief. For the plea with respect to the nature of proceedings under Section 144 of the Code and the period of limitation, it is argued that proceedings for restitution are in the nature of execution proceedings and therefore, the limitation applicable to executions would apply. I have heard learned counsel for the parties and perused the impugned order. As facts relevant, for adjudication of the present controversy have already been narrated, they do not require repetition, except to the C.R. No.4376 of 2003 4 extent that the petitioners or their vendees remained in possession from 1973 to 2000. Before proceeding to examine the dispute on merits, it would be necessary to examine the nature of the proceedings for restitution. The word “restitution” draws its meaning from the legal maxim “actus curiae neminem gravabit” i.e. “an act of Court shall prejudice no man”. Restitution is a rule of justice, equity and fair play and finds statutory expression in the provisions of Section 144 of the Code. Section 144 of the Code provides that where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings 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 restitution, cause such restitution to be made as will, so far as may be, place the parties in the position they occupied but for such decree or order. To achieve the above object, Section 144, empowers a Court to make any orders, including orders for refund of costs and for the payment of interest, damages, compensation and mesne profits, consequent to such variation, reversal, setting aside or modification of a decree or order. Restitution is thus the power of a Court to place the parties at a position obtaining on the date the decree or order that has been varied, modified or set aside, was passed. As the source of the power of restitution is the rule of justice, equity and fair play drawn from the maxim “actus curiae neminem gravabit”, it may also be exercised under the inherent powers of a Court. As a sequel to the above discussion, it would be necessary in order to answer the submissions made by counsel for the petitioner to state that it is no longer res-integra that proceedings for restitution whether C.R. No.4376 of 2003 5 under Section 144 of the Code or under the inherent powers of the Court are in the nature of proceedings for execution as a court endeavours to undo a wrong perpetuated by its order. The nature of the restitution proceedings and the period of limitation that would govern their institution, came up for consideration before a Constitution Bench of the Hon'ble Supreme Court in Mahijibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and others (supra). It was held that as an application for restitution, seeks the fruit of a decree or an order, which has been reversed, set aside or modified, an application for restitution is in the nature of an application for execution. A relevant extract from the aforementioned judgement would therefore, be appropriate :- “XXX XXX XXX 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, C.R. No.4376 of 2003 6 seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceedings, 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. XXX XXX XXX The historical background of S.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 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 S.144 of the Code of Civil Procedure that an application for restitution is an application for execution of a decree.” C.R. No.4376 of 2003 7 The question that would now merit consideration is the period of limitation that would govern the institution of an application for restitution. The petitioners were granted an ex-parte decree on 7.5.1971. The ex-parte decree was set aside by the Hon'ble High Court on 19.11.1984. The application for restitution was filed on 9.6.1988. The submission by counsel for the petitioner that the limitation for filing an application for restitution is 3 years, from the accrual of the cause of action, is incorrect. The Hon'ble Supreme Court, in Mahijibhai Mohanbhai Barot (supra), while holding that proceedings for restitution were in the nature of execution proceedings also held that the limitation for filing an application for restitution would be governed by Article 182 of the Limitation Act, 1908, (Article 136 of the Limitation Act, 1963). As limitation for filing an application for restitution is governed by Article 136 of the Limitation Act,an application for restitution can be filed within 12 years of accrual of the cause of action. The application for restitution was, therefore, well within time. The next contention, as noticed herein before, is that Section 2 (12) of the Code, defines mesne profits as an amount that can be recovered from a person, who is in wrongful possession. The learned trial Court therefore could not have decreed mesne profits against the petitioners, as they were in possession, pursuant to a decree passed by a Court of competent jurisdiction. The aforesaid contentions merits outright rejection. The expression “wrongful possession” appearing in the definition of “mesne profits” as defined U/S Section 2(12) of the Code cannot be equated with “illegal or unauthorised possession”. The expression “wrongful C.R. No.4376 of 2003 8 possession” would necessarily include possession obtained pursuant to or under a decree or an order, which upon the decree or order being set aside, varied or modified has become “wrongful”. Upon the setting aside of a decree or an order and by a legal fiction parties are transported to a status in time,as existed prior to the passing of the decree or order, which has been set aside, varied or modified. It is, therefore, apparent that where a decree or order is set aside, modified or varied, the beneficiary of such a decree or order would be deemed to be in “ wrongful possession”. The petitioners arguments, disregard another significant fact. The expression “wrongful possession” is preceded by the words “damages” and “compensation”. Whether a Court uses the words “damages” or “compensation” or “mesne profits”, a Court in essence, restitutes a party for a wrong perpetuated, by its order and therefore calls upon the party in “wrongful possession” to pay “mesne profits”, “damages” and/or “compensation”. Another submission that Order 20 Rule 12(1)(c)(iii) confines the grant of mesne profits to a period of three years cannot be accepted. Order 20 Rule 12(1)(c)(iii) confines the relief after the grant of mesne profits and not prior thereto. The submission by counsel for the petitioners that they had delivered possession to the vendees in the year 1975 and therefore, should not be directed to pay mesne profits/damages/compensation, cannot be accepted. The petitioners obtained the property, pursuant to a decree passed in their favour, which was eventually set aside in the year 1984. Despite the setting aside of the decree in the year 1984,the petitioners continued to hold the property and restored possession to the Government in the year 2000. C.R. No.4376 of 2003 9 In this view of the matter, I find no merit in the revision petition. Dismissed. 26.3.2008 (RAJIVE BHALLA) GS JUDGE