Case ID: 1884

Judgment:
Appeals Nos. 777 and 778 of 1964. Appeals by special leave from the judgment and order dated March 5	 1964 of the Gujarat High Court in First appeals Nos. 111 and 112 of 1960. W. section Barlingay and A. G. Ratitaparkhi	 for the appellant (in both the appeals). I. N. Shroff	 for the respondents 2 and 3. Sarkar J. delivered a dissenting Opinion. The Judgment of Subba Rao	 Raghubar Dayal	 Ayyangar and Mudholkar JJ. was delivered by Subba Rao J. Sarkar J. These appeals arise from two miscellaneous appli cations made to the trial Court which was the Court of the Civil Judge	 Nadiad in the State of Gujarat. One of these applications was for execution of orders for costs awarded and the other was under section 144 of the Code of Civil Procedure for restitution of money and property taken in execution of a decree reversed in appeal. 'Me appellant is the successor in interest of the plaintiff in the suit out of the proceedings of which these appeals arise and the respondents were the defendants there. The appellant 's predecessor in interest had filed the suit for possession of land against the respondents and another person	 now dead. The suit was decreed with costs by the trial Court on November 30	 1945 but that decree was set aside on July 13	 1949 439 on appeal by the defendants to the High Court of Bombay. While the appeal was pending the appellant 's predecessor in interest had in execution of the decree of the trial Court obtained possession of the land and realised the costs awarded. Also pending the appeal the appellant 's predecessor in interest having died	 the appellant was substituted in his place. After the appellate decree had been drawn up	 it was amended on August 24	 1950 by deleting the name of one of the appellants mentioned therein	 being one of the defendants to the suit	 on the ground of his death. The appellant got leave from this Court under article 136 of the Constitution to appeal from the appellate decree but such leave was revoked on November 24	 1952 as the appellant had failed to carry out the condition on which it had been granted. Thereafter on February 1 1	 1 9 5 3	 the respondents filed in the trial Court the application for execution for recovering the costs awarded to them in the proceedings up to the date of the revocation of leave by this Court and out of this application one of the appeals has arisen. On February 13	 1953	 they filed the other application under section 144 of the Code for restitution of the land taken and the costs realised from them in execution of the decree of the trial Court and out of this the other appeal has arisen. The only question argued in each appeal is whether it is barred by limitation. As regards the application for execution	 I agree with my learned brother Subba Rao that it is not barred by time and the appeal arising from it	 that is	 appeal No. 777 of 1964 should be dismissed. On this matter I	 have nothing to add to what my learned brother has stated in his judgment. On the other application	 namely	 the application for restitution under section 144 of the Code	 I have come to a conclusion different from that of my learned brother. The question here also	 as I have already said	 is whether the application had been made beyond the time specified and was barred. The appellant	 who was the defendant to that application	 contended that an application under section 144 was not in execution and would be governed by article 181 of the Limitation Act which covers applications not specially provided for in the Schedule to that Act and not by article 182 relating to execution. The respondents who wanted the restitution	 contended on the other hand that the case came under article 182 as the application for it was really one in execution. Subject to certain questions which I will later discuss	 it is not in dispute that if article 181 applied	 then the application would be barred while it would not be so if the case was governed by article 182. Supp./65 12 440 The question	 therefore	 in this appeal is whether an application under section 144 is an application in execution. On that question there has been a great divergence of opinion in the High Courts. It would not be profitable to refer specifically to the reasons given in these judgments in support of the views respectively adopted	 for these reasons will	 in substance	 all be discussed later. In my view	 an application under section 144 is not one for execution and I proceed now to state my reasons for that view. I suppose our first task in deciding what kind of application is contemplated in section 144 is to look at its terms. On doing so	 I find that no reference to execution is made in it. It is not contained in any chapter dealing with execution. It says that when a party becomes entitled to restitution as a result of a decree being varied or reversed	 the Court of first instance shall	 on his application	 cause restitution to be made and for this purpose the Court may the word "may" here clearly means "shalt" make any orders that may be necessary. Apart from the fact that the application is not described as one in execution	 the provision for the making of an order for the purpose of effecting restitution would lead to the 	conclusion that it is this order which is to be executed for obtaining restitution. The section obviously could not contemplate two applications for execution	 and therefore	 the earlier application resulting in the order mentioned in the section could not be one for execution. It seems to me impossible	 looking at the terms of the section alone and without more	 we have no right to look at anything else to say that the application contemplated in it is one in execution. There are other reasons indicating that the application contemplated by the section is not one for execution. Thus if the application was in execution	 then under section 47 of the Code a suit to obtain the same relief would be barred. It would then have been unnecessary to provide by sub section (2) of section 144 that no suit shall be instituted for the purpose of obtaining restitution. Again turning to the definition of decree in section 2	 sub sec. (2)	 I find that it includes the determination of a question within section 144. This provision would be wholly unnecessary if the determination of that question was in execution proceedings for then the matter would be brought within the definition of decree by that part of it which included in it the determination of any question within section 47 which section relates to questions arising in execution. Lastly	 while section 144 provides that the application under it is to be made to "the Court of first instance"	 section 38 which occurs in 441 a part of the Code dealing with execution	 states that a decree may be executed either by "the Court which passed it or by the Court to which it is sent for execution". Section 39 provides for a transfer of a decree for execution to another Court and by virtue of Or. 21	 r	 10	 the holder of a decree desiring to execute it shall	 if the decree has been sent to another Court	 apply to that Court. Under section 144 however the application had to be made to "the Court of first instance". The section does not permit an application to be made to a transferee Court. This again will indicate that it was riot intended that an application under section 144 will be an application for execution. No doubt	 the expression "Court of first Instance" has to be interpreted in a general sense and would include	 where the Court of first instance has ceased to exist	 a court which then has jurisdiction over the territory in which the abolished Court functioned. Such a view was taken in Panchapakesa Aiyar vs Natesa Pathar(l). This however is a different matter. It was said on behalf of the respondents that section 144 of the Code of 1908 was intended to replace the analogous provisions contained in section 583 of the preceding Code of 1882 and was in effect a re enactment of the earlier provision and	 therefore	 in construing section 144 it has to be considered in what way the earlier provision	 namely	 section 583	 was defective which defects the new provision intended to rectify. It does not seem to me that even this approach assists the contention that section 144 contemplates an application in execution. Section 583 expressly said that the restitution was to be obtained by way of an execution. While it is true that on various questions arising under section 583 difficulty had been felt and divergent views expressed in the High Courts	 there was however no doubt ever felt that the earlier section had provided for a procedure by way of execution to obtain restitution. The earlier section cannot	 therefore	 lend any support to the view that the application under the new section has to be in execution. Indeed the old section leads to the contrary view for while it expressly provided that restitution would be by way of execution	 the present section deliberately omits reference to execution. This departure in the terminology used	 would tend to the view that it was intended that the procedure under the new section would not be by way of execution. With the difficulties actually felt under section 583	 we are not concerned in the discussion of the present case: they give no assistance in the solution of the question now before us. (1) 442 It was then said that if the application for obtaining restitution under section 144 was not in execution	 then minors and others would be deprived of the benefit of the provisions in sections 6 and 7 of the Limitation Act and the benefit of section 15 of that Act would also not be available in respect of such an application. It the language of section 144 by itself clearly indicates that the procedure is not to be by way of execution	 as I think it does	 it would not be legitimate to interpret that section in a different way because of the deprivation of the benefits under the provisions of another Act. Furthermore	 there will be many applications coming under article 181 of the Limitation Act other than one under section 144 of the Code where the benefits of these sections of the Limitation Act would not be avail able. The provisions in the Code of Civil Procedure which give rise to the other kinds of applications covered by article 181 of the Limitation Act cannot all be changed for conferring the benefits of sections 6	 7 and 15 of that Act. Clearly the intention of sections 6	 7 and 15 of the Limitation Act was that their benefit would be available only in cases coming within their terms. I am	 therefore	 unable to agree that a consideration of these sections of the Limitation Act is relevant for the present enquiry. For all these reasons I am of opinion that the application contemplated in section 144 of the Code is not one in execution and	 therefore	 it is not governed by article 182 of the Limitation Act dealing with execution but by article 181. for it is not disputed that if article 182 did not apply	 article 181 would. Now under article 181 the time starts to run from the date the right to apply accrues and the period provided is three years. In the present case if the right to apply accrued from the date of the appellate decree which gave rise to the right of restitution	 then the application for restitution would be barred for the appellate decree was passed on July 13	 1949 and the application had been filed on February 13	 1953. But	 as I have already said	 after the appellate decree had been drawn up it was amended on August 24	 1950 by deleting the name of one of the appellants who had died. It was said for the respondents that the right to apply even if article 181 applied	 must be said to have accrued when the amendment was made	 for before then the present respondents could not apply	 and if time was computed from that date the application was not barred. This contention however is without foundation for under section 9 of the Limitation Act once the time starts running	 it does not stop to do so and there is no dispute that the time began to run from the date of the appellate decree when the right to apply first accrued. 443 It was lastly contended for the respondents that time should start running from the date when this Court revoked the leave to appeal granted under article 136. There is no authority to support this contention. In the result I would allow appeal No. 778 of 1964 that has arisen from Miscellaneous application No. 16 of 1953 and dismiss the other appeal. Subba Rao	 J. These appeals by special leave raise	 inter alia	 the question whether article 181 of the Limitation Act or article 182 thereof applies to an application under section 144 of the Code of Civil Procedure	 1908. 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 Mohanbhai 's 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 of 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 444 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 section 144 of the Code 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 Mohanbai in execution of the decree of the Trial Court. The appellant contended that both the applications were barred by limitation. The learned Civil Judge held that cl. (2) of article 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 article 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 article 181 of the Limitation Act would apply and	 therefore the said appli cation not having been filed within 3 years of the date of the decree	 was barred thereunder. Alternatively he contended that even if article 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 article 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 con firmed the ordeer of the Trial Court. Hence the appeals. Dr. Barlingay	 learned counsel for the appellant	 raised 'before us the following two points : (1) An application for restitution under section 144 of the Code of Civil Procedure is not an application for the execution of a decree and	 therefore	 the said application is not governed by article 182 of the Limitation Act	 which provides for a period of limitation in the case of execution of decrees	 but by article 181 thereof	 which is a residuary article of limitation. 445 (2)As under article 181 of the Limitation Act the period of limitation of 3 years starts from the date the right to apply accrues	 the said application for restitution was barred by limitation as the respondents right to apply for restitution accrued to them when the appeal filed by them in the High Court was allowed on July 13	 1949. He further argued that the alleged amendment dated August 24	 1950	 would not help the respondents	 as the 7th respondent (7th appellant in the High Court) died after the said appeal was disposed of	 that is after the respondents ' right to apply accrued; and that the second application viz.	 Special Darkhast No. 7 of 1953	 for recovery of costs was also barred by limitation under article 182 of the limitation Act as it was filed beyond 3 vears from the date of the appellate decree and that the amendment dated August 24	 1950	 on which the respondents relied to save the bar	 was only an amendment of a clerical mistake and	 therefore	 was not an amendment within the meaning of article 182(4) of the Limitation Act. Mr. 1. N. Shroff. learned counsel for the respondents	 on the other hand	 contended that both the applications are governed by article 182 of the Limitation Act and that they are saved both under cl. (2) and cl. (4) of article 182 of the	 Limitation Act. Alternatively he argued that even if article 181 of the Limitation Act applied to the application for restitution	 it would be within time	 as the respondents right to apply accrued to them either on the date when the Supreme Court revoked the special leave granted to the appellant	 viz.	 November 24	 1952	 or at any rate on the date when the decree was amended	 i.e.	 August 24	 1950. We shall first take up the question of Iimitation in regard to an application for restitution. At the outset it would be convenient to read the relevant provisions of the Code of Civil Procedure and of the Limitation Act. Section 144 of the Code of Civil Procedure (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	 446 which are properly consequential on such variation or reversal. (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). The First Schedule to the Limitation Act Period Time from which Description of application of period begins Limitation to run article 181. Applications for When the right to which no period of apply accrues. limitation is provided Three elsewhere in this schedule years or by section 48 of the Code of Civil Procedure	 1908. article 182.For the execution Three years; 1. The date of the of a decree or order of or where a decree or order	 or any Civil Court not certified provided for by article by copy of 2. Where there has 183 or by section 48 of the decree or been an appeal	 the Code Civil Procedure	 orders has the date of the 1908. been regis final decree tered	 six or order of the	 years. Appellate Court or the withdrawal of the appeal	 or 3. Where there has been a review of Judgment	date of the decision passed on the review	 or 4. Where the decree has been ameended	 the date of ameendment	 or Under the said provisions if an application is one for execution of a decree	 Art 182 of the Limitation Act applies; but if it is not an application for execution of a decree	 but an application for which no period of limitation is prescribed elsewhere	 article 181 of the Limitation Act applies. The short but difficult question is whether an application for restitution under section 144 of the Code of Civil Procedure is an application for execution of a decree. Section 144 of the Code of Civil Procedure does not say in express terms that an application for restitution is not an application for execution of a decree; nor does it say that it is one for execution. So its nature can be ascertained only by construing the said statutory provision. To execute a decree is to carry into effect the terms of the decree; and "to restitute" is to restore to a 447 party the benefit which the other party has received under a decree subsequently held to be wrong. There is no dichotomy between execution and restitution	 for there can be an executable decree for restitution. There is a sharp cleavage of opinion among the various High Courts on the question whether an application for restitution is one for execution of a decree or not. This shows that different views can be taken on a fair construction of section 144 of the Code of Civil Procedure. In such a case the rule of construction of a statute applicable is stated by Lord Coke	 which is adopted by Maxwell	 and it is found in Maxwell on Interpretation of Statutes	 11th Edn. at p. 18 : "To arrive at the real meaning	 it is always necessary to get an exact conception of the aim	 scope and object of the whole Act; to consider	 according to Lord Coke : 1. What was the law before the Act was passed; 2. Whatwas the mischief or defect for which the law had not provided; 3. What remedy Parliament has appointed; and 4. The reason of the remedy. " Let us therefore	 approach the problem having regard to the said rule of construction. In Halsbury 's Laws of England	 2nd Edn.	 Vol. 14	 p.38	 para. 69	 the English law on the subject is stated thus: "Where a wrongful or irregular execution has been set aside	 or where a judgment or order has been reversed after execution thereon has taken place	 restitution will be made to the successful party. The order setting aside the execution or reversing the judgment or order should provide for this; and if it does	 execution may issue upon it in the ordinary course. If the order does not so provide	 another order may be made	 or a writ called a writ of restitution be issued	 commanding the judgment creditor to restore the property or pay over the proceeds of sale. " The said passage indicates that under the English law the appellate order reversing the original one may itself contain a direction for restitution or a court may issue a separate order or a writ of restitution. In the Code of Civil Procedure	 1859	 there was no express provision for restitution. But the scope of the doctrine of restitution was considered by the Judicial Committee in Shama Purshad Roy Chowdery vs Hurro Purshad Roy Chowdery(l) wherein it stated the principle thus (1) [1865] 10 M I.A.203	211. 448 ". . this rule of law rests	 as their Lordship apprehend	 upon this ground	 that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior pro ceeding. If it has been so reversed or superseded	 the money recovered under it ought certainly to be refunded	 and	 as their Lordships conceive	 is recoverable either by summary process	 or by a new suit or action. The true question	 therefore	 in such cases is	 wether the decree or judgment under which the money "	as originally recovered has been reversed or superseded; and applying this test to the present case	 their Lordships are oil opinion	 that the decrees obtained by Tara Pushad against Doogra Purshad were superseded by the Order of Her Majesty in Council pronounced in the year 1849. It was plainly intended by that Order that all the rights and liabilities of the parties should be dealt with under it	 and it would be in contravention of the Order to permit the decrees obtained by Tara Purshad pending the appeal on which it was made to interfere with this purpose. " Though this passage relates to supersession of a decree not in an appeal against that decree but by the Privy Council in a collateral proceeding the Judicial Committee made it clear that the rights and liabilities of parties should be dealt with only under the decree superseding the earlier decree; and it further restated the Englisg principle that restitution could be made either by a summary process or by a new suit or action. The Code of Civil Procedure	 1882	 for the first time	 introduced section 583 providing for restitution. That section read : "When a party entitled to any benefit	 by way of restitution or otherwise	 under a decree passed in an appeal under this chapter desires to obtain execution of the same	 he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal	 according to the rules hereinbefore prescribed for the execution of decrees in suits." Under this section any party entitled to any benefit under a decree passed in an appeal could file an application in the Court which passed the decree against which the appeal was preferred for the purpose of executing the appellate decree. The crucial words of 449 the section were "benefit by way of restitution or otherwise under a decree". Did those words mean that an appellate decree should expressly contain a direction for restoration of any property taken by the respondent in execution of the decree of the first Court	 or did they include any benefit to which the decree holder would be entitled as a consequence of that decree of reversal It was held that under that section a party would be entitled to restitution	 though restitution was not expressly provided for by the decree see Balvantrav vs Sadrudin(1); and Rohini Singh vs Hodding(2) A bare perusal of the section indicates that an application for restitution under the said section was an application for execution of an appellate decree. The Privy Council in Prag Narain Kamakhia Singh(3) held that a separate suit would not lie and the relief provided by the said section could be obtained only under section 583 and section 244 of the Code of Civil Procedure in execution proceedings. An application made to obtain restitution under a decree in accordance with section 583 of the Code of Civil Procedure	 1982	 being a proceeding in execution of that decree	 it was held by all the High Courts	 except one	 that proceedings by way of restitution were proceedings for execution within the meaning of article 179 of the Limitation Act	 1877 : see Venkayya vs Raghavacharlu(4)	 Nand Ram vs Sita Ram(5)	 and Jeddi Subraya Venkatesh Shanboah vs Ramrao Ramchandra Murdeshvar(6). There was so conflict on the question whether mesne profit	 for the period of dispossession of the party could be recovered only under the said section or by a regular suit. The legal position under section 583 of the Code of Civil Procedure	 1882	 may be stated thus : The benefit accrued to a party under an appellate decree could be realized by him by executing the said decree through the Court which passed the decree against which the appeal was preferred. The appellate Court which set aside or modified the decree of the first Court could give a direction providing for restitution. Even if it did not expressly do so	 it should certainly be implied as the appellate Court could not have intended otherwise. The setting aside of the decree itself raised the necessary implication that the parties should be restored to their original position. Be that as it may	 Courts understood the provision in that light and held that such a decree was executable as if it contained such a direction. Such an application was governed by article 179 of the Limitation Act	 1887	 (1) Bom. (2) Cal. (3) All. 551 (P.C). (4) 	 (5) All. 545. (6) Bom. 450 corresponding to article 182 of the present Act. No suit lay for the relief of restitution in respect of such a benefit	 the same being held by the Privy Council to be barred by section 244 of the Code of Civil Procedure	 corresponding to the present section 47 of the Code. But the terms of the section were only confined to a party entitled to a benefit by way of restitution or otherwise under a decree passed in an appeal and not under any other proceeding. With this background the Legislature in passing the Code of Civil Procedure	 1908	 introduced section 144 therein. The said section is more comprehensive than section 583 of the Code of 1882. Section 144 of the present Code does not create any right of restitution. As stated by the Judicial Committee in Jai Berham vs Kedar Nath Marwari(l)	 "It is the duty of the Court under section 144 of the Civil Procedure Code to 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. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. " 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 (1) [1922] L.R. 49 I.A. 351	 355. 451 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. 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 section 144 of the Code. Therefore	 an execution application for restitution would be governed by section 144 of the Code of Civil Procedure. If the argument of the learned counsel for the appellant be accepted	 it will lead to inconsistent positions depending upon whether the appellate decree gave a direction for restitution or it did not. If it did not	 the application would become an original petition; if it did	 it would be an execution application. This inconsistency can be avoided	 if such a direction for restitution be implied in every appellate decree setting aside or modifying the decree of the lower Court	 even if it does not expressly give such a direction. The second objection is that if the view of the High Court is correct	 section 144 would become redundant	 as section 47 of the Code covers the same field. Even under the Act of 1882 there were two sections	 namely	 section 583	 corresponding	 to some extent	 to section 144 of the present Code	 and section 244	 corresponding to section 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 section 144 of the Code of Civil Procedure	 1908	 was enacted to obviate any further debate on the question of bar of a suit. The next criticism is that while execution proceedings are confined to Part 11 and Order XXI of the Code of Civil Procedure	 the Legislature	 presumably to make it clear that an application for restitution is not an execution application	 placed it in Part XI thereof under the heading "Miscellaneous". 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 452 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 fail 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 Ill. 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 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 the earlier Code	 section 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 a matters : see sections 132(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 lot decisive of the question one way or other. Nor can we accept the argument that if an application under section 144 of the Code of Civil Procedure is an application for execution	 it will be inconsistent with section 38 of the Code. Under section 144 an application can be filed only before the Court of the first instance whereas under section 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 section 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 453 sections 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 	aid Court can transfer the decree under section 39 of the Code. The contention that the determination of a question under section 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 section 47 and that made under section 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 section 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 section 144 cannot likewise cease to be one for the reason that the said section is included in the definition of "decree". 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 of limitation for executing the decree would be governed by article 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 article 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 article 182 of the Limitation Act	 whereas if no such direction was given	 it would be governed by article 181 thereof. Where an appellant was a minor or under a disability he could not take advantage of the periods of extension provided under sections 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 section 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 454 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 ambiguous. As we have already indicated	 there are strong currents of judicial opinion expressing conflicting views on the construction of section 144 of the Code of Civil Procedure. The Madras High Court in Somasundaram vs Chokkalingam(1) and Chittoori Venkatarao vs Chekka Suryanarayana (2) 	 the Bombay High Court in Kurgodigouda 'vs Ningangouda (8) and Hamidalli vs Ahmedalli (4) 	 the Patna High Court in Bhaunath vs Kedarnath(5)	 the Chief Court of Oudh in Chandika vs Bital(6)	 the Rangoon High Court in A.M.K.C.T. Muthuukarauppan Chettiar vs Annamalai(7)	 the High Court of Travancore Cochin in Kochu Vareed vs Mariyam(8)	 and the Madhya Pradesh High Court in Choudhary Hariram vs Pooran Singh(9) held that an application under section 144 of the Code of Civil Procedure was an application for execution of a decree	 while it had been held by the High Court of Allahabad in Parmeshwar Singh vs Sitaldin Dube(") and other cases	 the Calcutta High Court in Sarojebhushan vs Debendranath(11) and Hari Mohan Dalal vs Parmeshwar Shau(12) and other cases	 the Nagpur High Court in Khwaja Allawali Kesarimal(13)	 and the Punjab High Court in Mela Ram vs Dharam Chand and Amrit Lal(14) that it was not an application for execution. We have gone though 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 views. We realize that the opposite construction for 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 construc tion which maintains rather than disturbs the equilibrium in the field of execution. The historical background of section 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 (1) Mad. (2) I.L.R. (3) Bom. (4) Bom. (5) Pat. 411 (F.B.). (6) Luck. (7) Rang. (8) A.I.R. 1952 T.C. 40. (9) A.I.R. 1962 M.P. 295. (10) All. 26 (F.B.). (11) Cal. (12) Cal. (13) I.L.R. (14) [1958] I.L.R. Xi (1) Punj. 407(F.B.) 455 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 section 144 of the Code of Civil Procedure that an application for restitution is an application for execution of a decree. Coming to the second application	 namely	 Special Darkhast No. 7 of 1953	 filed for recovery of costs	 undoubtedly it is governed by article 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 article 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 article 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 article 182 of the Limitation Act. If so	 the application for execution as well as that for restitution having been filed within 3 years from. that date	 both were Sup./65 13 456 clearly within time. In the result	 the appeals fail and are dismissed with cost. ORDER In accordance with the Opinion of the Majority the Appeal is dismissed with costs.

Summary:
The appellant filed a suit for recovery of certain properties from the respondents. The suit was decreed by the trial court The respondents appealed to the High Court	 but pending the appeal	 the appellant	 in execution of the decree of the trial court	 obtained possession of the suit properties and recovered the costs awarded. Only July 13	 1949	 the High Court set aside the decree of the trial court	 and on August 24	 1950	 the appellate decree was amended by deleting the name of one of the decree holders from the decree. The respondents filed two applications one on February 11	 1953 for costs and the other on February 13	 1953 for restitution of the properties and costs paid	 under section 144 of the Civil Procedure Code	 1908. The trial court ordered execution to proceed and on appeal the High Court confirmed the order. In the appeal to the Supreme Court	 it was contended that: (i) the application for recovery of costs was barred by limitation under article 182 of the Limitation Act	 1908	 as it was filed beyond 3 years from the date of the appellate decree and (ii) the application for restitution was not an application for execution and was therefore governed by article 181 of the Limitation Act; and as the period of limitation of 3 years under that article	 starts from the date when the right to apply accrues the application for restitution was also barred by limitation. HELD (by Full Court): (i) The execution application for the recovery of costs was within time. [439 E; 455 H] By the amendment of August 24	 1950	 the name of one of the decree holders was struck out from the decree and the result was	 to that	 extent	 the rights of the parties were modified by the amended decree. it was therefore. a case where the decree has been amended within the meaning of article 132(4) of the Limitation Act	 and the application for execution could be filed within 3 years from the date of the amendment. [455 G] (ii) (Per Subba Rao	 Raghubar Dayal	 Rajagopal Ayyangar and Mudholkar JJ.) : On a fair construction of the provisions of section 144 of the Code	 an application for restitution must be held to be one for execution of a decree	 and having been filed within 3 years from the date of the amended decree was within time. [455 B	 H] Having regard to the history of the section	 there is no reason why such an application should not be treated as one for execution of the appellate decree. The object of the section is to make the scope of restitution clear and unambiguous. It does not say that an application for restitution	 which till the Code of 1908 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 in 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 it back by 437 reason of the appellate decree in his favour	 he is not initiating any original proceeding but is concerned only with the working out of the appellate decree in his favour. [450 E H; 451 A] it would be inconsistent to hold that an application for restitution would be an original petition	 if the appellate decree did not give a direction for restitution	 and that it would be an execution application if it did. Such an inconsistency could be avoided if a direction for restitution were implied in every appellate decree setting aside or modifying the decree of the lower court. [451 C E] The existence of section 47 in the Code would make section 144 redundant. The latter section was enacted to prescribe the procedure	 define the powers of the court and expressly bar the maintainability of a suit in respect of a relief obtainable under it. [451 E	 G] The fact that the section has been placed in the "Miscellaneous" part of the Code for convenience of arrangement	 cannot affect the question if in reality the application for restitution is one for execution : at the most it is only one of the circumstances relevant to the enquiry and it is not decisive. [452 D E] Merely because	 under section 144	 the application has to be filed in "the court of first instance" and under section 38	 a decree may be executed both by "the Court which passed if ' or by "the court to which it is sent for execution. " an application under section 144	 does not ease to be one for execution. For under section 37	 the expression "Court which passed a decree" includes the "Court of first instance"	 when the decree to be executed has been passed in the exercise of appellate jurisdiction. [452 E G] If an execution application to which section 47 applies does not cease to be an execution application by reason of the section being included in the definition of a "decree" under a. 2(2)	 an execution application under section 144 cannot likewise cease to be one for the reason that the said section is included in the definition of decree. The two sections were included only for the purpose of giving a right of appeal. [453 C D] To construe an application for restitution as not one for execution would lead to anomalies specially under sections 6	 7 And 15 of the Lemitation Act. The existence of anomalies may have no relevance when a provision of a statute is clear and unambiguous	 but will certainly have a bearing when the section is ambiguous. Further	 in a procedural matter pertaining to execution when a section yields to two conflicting constructions	 the court should adopt a construction which maintains rather their disturbs the equilibrium in the field of execution. [453 H; 454 A	 F] Per Sarkar J. (dissenting) : The application under section 144 is not one in execution and therefore would not be governed by article 182 of the Limitation Act but by article 181. Since	 under article 181 time starts to Tun from the date the right to apply accrues and the period provided is three years	 the application for restitution would be barred. [442 D F] Apart from the fact that the application is not described as one in execution the provision in the section for the making of an order for the purpose of effecting restitution would lead to the conclusion that it is this order that is to be executed for obtaining restitution; and therefore the earlier application resulting in such order	 could not be one for execution. [440 D E] if the application under section 144 is one for execution	 then the pro@ion in the section that no suit shall be instituted for the Purpose of obtaining restitution	 and the inclusion of the determination of a question under section 144 within the definition of decree in section 2(2) would be unnecessary because of section 47. The latter ion which relates to questions arising in 438 execution bars a suit to obtain the same relief	 and the determination of any question under that section is included within the definition of decree. [440 F H] Further	 under a. 144	 the application has to be made to "the Court of first instance" and not to a transferee court	 whereas	 under sections 38 and 39 and OXXI	 r. 10	 the holder of a decree desiring to execute it shall apply to the court to which the decree has been sent for execution. [441 A C] While the section 583 of the Code of 1882	 expressly provided that restitution would be by way of execution	 section 144 of the Code of 1908	 deliberately omits reference to execution. This departure in the terminology used	 would tend to the view that it was intended that the procedure under the new section would not be by way of execution. [441 F G] If the language of the section by itself clearly indicates that the procedure is not to be by way of execution	 it would not be legitimate to interpret the section in a different way because of the deprivation of the benefits under sections 6	 7 and 15 of the Limitation Act. [442 B] It cannot be said that the right to apply for restitution accrued when the appellate decree was amended	 for under section 9 of the Limitation Act	 case began to run from the date of the appellate decree	 when the right to apply first accrued. [442 H]