Case: Mahjibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai &amp; Ors

16. 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 Mohanbhais 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 at Rs. 1,290-3-0 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he did not comply with the conditions imposed on him while granting the special leave, this Court on November 24, 1952, rescinded the special leave.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 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 S. 144 of theCode 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. 1,290-3-0 paid by the trustees to Mohanbhai in execution of the decree of the Trial Court. The appellant contended that the applications were barred by limitation. The learned Civil Judge held that cl. (2) of Art.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 Art. 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 Art. 181 of the Limitation Act would apply and, therefore, the said application , not having been filed within 3 years of the date of the decree, was barred thereunder. Alternatively he contended that even if Art. 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 Art. 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 confirmed the order of the Trial Court. Hence the appeals.

Reasoning: 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 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 decree24. 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 S. 144 of the Code. Therefore, an execution application for restitution would be governed by S. 144 of the25. The second objection is that if the view of the High Court is correct, S. 144 would become redundant, as S. 47 of the Code covers the same field. Even under the Act of 1882 there were two sections, namely, S. 583, corresponding to some extent, to S. 144 of the present Code, and S. 244, corresponding to S. 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 S. 144 of theCode of Civil Procedure, 1908, was enacted to obviate any further debate on the question of bar of a suitThe placing of a particular section in a Part of the Code dealing with a specific subject-matter may support the contention that 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 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 fall 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 XI, 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 S. 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 earlier Code, S. 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 matters : see ss. l32(2), 135(3), 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 not decisive of the question one way or other27. Nor can we accept the argument that if an application under S. 144 of theCode of Civil Procedure is in 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 any difficulty in holding that the said Court can transfer the decree under S.39 of the Code28. The contention that the determination of a question under. S 144 of the Code is included in the definition of a decree under Section 2(2) of the Code has also no relevance to the question before us. The said definition takes in both an order made under S. 47 and that made under S. 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 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 application under S. 144. cannot likewise cease to be one for the reason that the said section is included in the definition of decree29. 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 at limitation for executing the decree would be governed by Art. 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 Art. 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 Art. 132 of the Limitation Act, whereas if no such direction was given, it would be governed by Art. 181 thereof. Where an appellant was a minor or under a disability he could not take advantage of the period of extension provided under Ss. 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 S. 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 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 ambiguousWe have gone through 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 reasons given by the learned Judges in support of their respective views. We realize that the opposite construction far 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 construction which maintains rather than disturbs the equilibrium in the field of execution. The historical background of S. 144 of theCode 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 its 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 theCode of Civil Procedure that an application for restitution is an application for execution of a decree31. Coming to the second application, namely, Special Darkhast No. 7 of 1953, filed for recovery of costs, undoubtedly it is governed by, Art. 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 Art. 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 Art. 182 (4) 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 Art. 182 of the Limitation Act32. If so, the application for execution as well as that for restitution having been filed within 3 years from that date, both were clearly within time.