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Judgment
Amareswaro, J.—The short and simple question that arises for our consideration is whether the proceedings under S. 144 of the Civil P.C. can be stayed by the court in exercise of the power under O. 41, R. 5 of C.P.C. The matter is before us on a reference by the learned single judge before whom it was contended that the court had no such power.
The relevant facts may be briefly stated :-
Basing on sale certificate obtained after purchasing the property in execution of a decree, the petitioner filed O. S. No. 655 of 1970 I the court of the District Munisfff, Ongole for possession. The suit was decreed. The petitioner took possession of the lands in execution of the decree. On appeal by the respondents, the decree was reversed on the sole ground that the suit was barred by limitation. The respondents moved the lower court for restitution and the application is pending.
Aggrieved by the order of the Appellate court dismissing the suit, the petitioners filed a second appeal which was admitted. Pending the second appeal, they filled the above C.M.P. No. 1736 of 1980 for stay of all further proceedings pursuant to the order of the lower Appellate court. This application is opposed by the respondents.
Mr. P.M. Gopala Rao, the learned counsel for the respondents mainly contended that restitution is not a proceeding in execution. It is an independent right created under S. 144 of the C.P.C. in favour of a party who is dispossessed under a wrong decree to recover possession without the necessity to file a fresh suit. We see no substance in this contention in view of the authoritative pronouncement of the supreme court in Mahjibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and Others, , Subba Rao J. as he then was, speaking for the court observed as follows (at p. 1484):
"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."
It is therefore not possible to accept the contention that restitution proceedings are not proceedings in execution.
Even so, argues the learned counsel for the respondents, that restitution can not be stayed as it is obligatory on the court to order restitution under S. 144 of C.P.C. when the conditions mentioned therein exist. Proceedings under S. 144 of C.P.C. must be treated as an exception to O. 41, R. 5, C.P.C. We cannot agree. O. 41, R. 5 imposes no limitations on the power of the Appellate court. When once it is held that restitution is a proceeding in execution, there is no reason why it should be treated as an exception. The obligation imposed under S. 144, C.P.C. cannot abridge or restrict the power of the Appellate court to a particular category of cases. O. 41,R.5 covers all modes of execution of a decree appealed against. It is one thing to say that the court has no power and entirely different to say that the power must be exercised sparingly. In the former, the power is excluded while in the latter, it is implied. In support of his contention, the learned counsel for the respondents relied upon the following observations of Munikannalah, J. as he then was in Rafiuddin V. Narayana AIR 1962 AP 525:
"No doubt in this decision there is expression of the view that restitution proceedings are not proceedings under the decree or at any rate not of the kind contemplated under Order 41, Rule 5, C.P.C. But it is not necessary for me to have to pursue this line of reasoning adopted in that decision in regard to this particular except to say that cases where restitution could be had are indeed distinguishable as outside the execution proceedings falling under Order 41, Rule 5 for purpose of stay applications."
These observations do not support the contention of the respondents in any manner. What all the learned judge said was that the considerations for the purpose of staying restitution proceedings are different from the considerations in the matter of stay of other execution proceedings. In fact, the learned judge relied upon a judgement of the supreme court in Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das, in which it is said as follows (at p. 139):-
"An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgement to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case."
In the later paragraph, Munukannaiah, J., further observed that (at p. 526):-
"It is consideration of real justice that should weigh with courts for granting stay and not notions of any balance of convenience such as disturbance of possession which may be relevant in the other set of cases."
This passage clearly demonstrates the untenability of the submission that the restitution proceedings cannot be stayed by the Appellate court when the decree in pursuance of which restitution if sought for is appealed against. The observations themselves show that the court has the power thought a distinction has to be made in exercise of that power between the two types of cases.
In Siddavva V. Ujjawappa (1966) 2 Mys LJ 206 it is held that the Appellate court has jurisdiction to order stay of restitution to which respondents have become entitled consequent on the reversal of a decree of the first instance. We are in complete agreement with the view expressed by the Mysore High Court.
The other decision in Ganesh Parshad Vs. Adi Hindu Social Service League, relied upon by the learned counsel for the respondents has no relevancy. It only says that it is obligatory on the part of the court to order restitution when an application is made u/s 144 of the C.P.C. This decision does not deal with the powers of the Appellate court in the matter of granting stay under O. 41, R. 5.
The only other aspect to be considered is whether it is a fit case for granting stay. It is true that the ordinary considerations of balance of convenience are not to be imported in cases of stay of restitution, as pointed out by Munikannaiah, J., in Rafiuddin V. Narayana AIR 1962 AP 525. It is considerations of real justice that should weigh with courts and not notions such as balance of convenience and disturbance of possession. In the present case, the petitioners purchased the suit property in execution of a court decree in 1965. The sale was confirmed but possession was not handed over and a suit was filed by the sons of the judgement-debtor for partition and separate possession of the family properties claiming an interest in the properties covered by the sale certificate. The petitioners were therefore constrained to file the present suit for recovery of possession. Several defences were taken that the sale was benami and not supported by consideration. All the pleas were rejected by the trial court including the plea based on limitation. The Appellate court reversed the decree only on the ground of limitation while agreeing with then findings of the lower court in other respects. The second appeal is now admitted. All the findings of fact are in favour of the petitioners. In these circumstances, we are the opinion that justice requires that that the stay should be granted.
We, therefore, grant stay and allow this petition.
Petition allowed.