Maqbool Alam Khan vs Mt. Khodaija Begum

Ramaswami, J.—Before formulating the question of law involved in this reference, it is necessary to set out the material facts which though complicated are not in dispute. Hamid Ali and Mahmood Ali (sons of Ahmad Ali by his first wife) were recorded as holders of a tenure of 83 acres odd under Khewat No. 4, Touzi No. 3309 of village Babhnaul. In 1926 the Maharaja of Dumraon obtained a decree for rent against the recorded tenants. In execution of the decree, Latafat son of Sheikh Asghar Ali purchased the tenure and obtained delivery of possession over it. Sheikh Asghar Ali was the son of Ahmad Ali through his second wife, Elahi Jan. In 1939 Mt. Najma wife of Sh. Amanat Ali, brother of Sk. Asghar Ali, brought a title suit (No. 127 of 1939) for declaration that the decree obtained by Maharaja Bahadur of Dumraon was merely a money decree, that Latafat obtained only the right and interest of Hamid Ali and Mahmood Ali by the execution sale. Mt. Najma alleged that her share was unaffected, and asked for partition. While this suit was pending, the Maharaja Bahadur brought a rent suit against Latafat and obtained a decree in execution of which Latafat''s interest was purchased by Mt. Khodaija. At the instance of Mt. Najma Khodaija was made a party in Title Suit No. 127 of 1939. In this suit Najma ultimately obtained a decree, in execution of which the tenure was partitioned and Najma was given delivery of possession of her share. But in 1944 Mt. Khodaija brought a Title Suit (No. 126 of 1944), for setting aside the decree obtained against her in Title suit No. 127 of 1939. The suit was dismissed in the trial Court but decreed in appeal. A second appeal was preferred to the High Court, but the parties effected a compromise and the Court allowed the appeal in terms thereof. According to this compromise the name of Khodaija was expunged from the category of defendants in Title Suit No. 127 of 1939, though "the decree will stand in other respects." Mt. Khodaija then applied to the Munsif for restitution alleging that on account of the compromise the decree in Title Suit No. 127 of 1939 was reversed so far as she was concerned. The application was contested by Mt. Najma''s heirs. But the Munsif held that Section 144 applied and ordered that Mt. Khodaija ought to be restored to possession and to be granted mesne profits.

Against this order Mt. Najma''s heirs have obtained a rule from this Court u/s 115, Civil P.C.

The question which presents itself on the threshold of this case is whether High Court is competent to revise the order of the Munsif directing that restitution should be made.

3a. For the opposite party learned advocate relied upon the Full Bench case, Jagendra Nath Singh Vs. Hira Sahu and Others, , and contended that the order of the Munsif being made u/s 144 an appeal lay to the District Judge and the High Court had no jurisdiction to interfere. On the contrary, learned advocate for the applicant referred to Ram Tahal Singh v. Sukeswar Reyain A.I.R.1916 Pat. 400 and maintained that Section 144 was confined to cases in which the decree had been varied or reversed by a superior Court, that the Munsif had no jurisdiction to order restitution in the present case.

The answer to the problem depends upon the proper construction of Section 144, Civil P.C.

Section 144(1) enacts:

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.

For the applicant it was argued that Courts of concurrent jurisdiction could not "reverse" or "vary" each other''s decree, that a decree was reversed or varied only when it is modified or set aside in the same proceedings by a superior Court. It was urged that the phrase "Court of first instance" contemplated that the variation or reversal of the decree should be made by a superior Court.

In my view, there is no warrant for construing the section in this limited sense. The phrase "varied or reversed" in the present section is unqualified and ought to receive its full force and effect. It is an established rule that words of limitation are not to be read into a statute if it can be avoided. In R. v. Liverpool Justices, (1883) 11 Q.B.D. 638. Bowen L.J. emphasised this cardinal point:

One objection which is to my mind almost conclusive evidence against it (the decision in Ex parte Todd (1855) L.J.B.K. 20, is this that so to construe the section is reading into it words which limit its prima facie operation, and make it something different and smaller than what its terms express. Now certainly we should not readily acquiesce in a construction which limits the operation of the section so as to make the remedy given by it not commensurate with the mischief which it was intended to cure.

For the applicant it was suggested that the phrase ''varied or reversed'' was used in a technical sense, that the phrase exclusively meant that variation or reversal of decree should be by appeal in the same proceeding. In my opinion, this argument is unfounded and there is no reason to hold that the phrase is used in such a restricted technical sense. A decree may be varied or reversed not only by an appeal but by revision to a superior Court which may either affirm, set aside or modify the decree. A Court may review its own decree and set it aside. If a decree is obtained by fraud or granted by a Court that has no jurisdiction, such a decree may doubtless be varied or reversed by a suit brought in a different Court. When a word is capable of being construed either in its popular sense or as a word of art, it is for those who assert that it is used in a technical and not in a popular sense to establish the fact [Sharp v. Dawes (1876) 2 Q.B.D. 26, Nuth v. Tamplin (1881) 8 Q.B.D. 247, Inland Revenue Commissioner v. Gribble (1918) 8 K.B. 212

In my opinion Section 144 is worded in very comprehensive terms, and ought not to be narrowly construed. Its object is to put right what was originally an error of the Court and to restore the parties to the position they would have occupied but for the Court''s erroneous decree. The principle of the doctrine of restitution is that on the reversal of a judgment the law raises an obligation in the party to the record who received the benefit of the erroreous judgment to make restitution to the other party for what he had lost. This obligation it is the duty of Courts to enforce.

In Rodger v. Comptoir d'' Escompte de Paris (1871) ILR P.C. 465. Lord Cairns laid stress on this principle.

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression ''the act of the Court'' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal but the act of the Court as a whole from the last Court which enjoys jurisdiction over the matter up to the highest Court, which finally disposes of the case.

The decision of the Judicial Committee in Jai Berham v. Kedar Nath Marwari A.I.R.1922 P.C. 269, is authority for the view that Section 144 ought not to be narrowly construed. In that case a sale in execution of a decree was set aside against a purchaser who was stranger to the decree. The Subordinate Judge ordered restoration of the property with mesne profits but made no order as to the purchase price. On appeal, the High Court modified the order of the Subordinate Judge to the effect that before properties were restored to the judgment debtor they ought to pay the auction-purchasers the price paid into Court. The judgment-debtors then appealed to the Judicial Committee who held that the Court''s duty to order restitution arose u/s 144 as also under its general jurisdiction. Lord Carson observed:

On the main question, namely, whether the auction purchasers are entitled to repayment of the deposit paid into Court as a condition precedent to their handing over possession to the judgment-debtors, their Lordships are in agreement with the judgment of the High Court, and think the order already referred to should on this point be affirmed. It is the duty of the Court u/s 144, Civil P.C., 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 construction I have adopted finds direct support in the Madras decision Tangatur Subbarayudu v. Yerram Setti Seshasani AIR 1917 Mad. 293. In that case an order in execution proceedings recognized the transfer of a decree and allowed the proceedings to proceed. But in a subsequent suit the transfer was declared invalid and the decree-holder was restrained from receiving the decretal amount. The High Court held that the judgment-debtor was entitled to restitution, that Section 144 was not confined to cases where restitution was claimed on the reversal of a decree in first or second appeal. Provided the decree was varied or reversed, the section applied; however the reversal or variance had been effected. The High Court referred to Shama Purshad Roy Chowdary v. Hurro Purshad Roy Chowdary 10 M.I.A. 203 in which the Judicial Committee stated:

The original decree or judgment mast be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded the money recovered under it ought certainly to be refunded. The true question, therefore, in such oases is, whether the decree or judgment under which the money was originally recovered has been reversed or superseded.

This construction is also adopted in the Pull Bench decision, Jagendra Nath Singh Vs. Hira Sahu and Others, . In that case one Jogendra Nath was in possession of some properties as a member of joint Hindu family. He was dispossessed by Nandan Sahu who had obtained a decree against Fateh Bahadur Singh, father of Jogendra Nath. Nandan Sahu had put the properties to sale and purchased it himself. Jogendra Nath then instituted a suit. It was dismissed in the first Court. On appeal the High Court allowed the appeal and ordered that the auction sale should be set aside on the ground that the decree in the first suit was not binding on the joint family of Fateh Bahadur Singh and his son Jogendra Nath. As a result, Jogendra Nath was restored to the possession of the properties. He then filed an application asking that he should obtain the mesne profits. The Subordinate Judge held that the application could not be entertained u/s 144. The High Court reversed the order, held that Jogendra Nath was entitled to restitution and sent the case back to the Subordinate Judge for determination of the amount of mesne profits.

In Raghu Singh v. Shew Prosad Rai, 17 I.C. 121, the Calcutta High Court (Mookerjee and Beaohcroft JJ.) observed that Section 144, Civil P.C., was enacted with a view to shorten litigation and afford speedy relief, that a narrow construction of the section so as to restrict its application should not be adopted. In that case a successful plaintiff in a suit for possession took possession of the property by force and not by execution of the decree. The decree was set aside on appeal and defendant applied for restitution of the property with mesne profits. It was objected that Section 144 could not apply since the respondent did not obtain delivery of possession by execution of the decree. The High Court rejected this argument holding that Section 144 ought not to be narrowly construed.

In Birajlal v. Damodar Das A.I.R.1922 ALL. 238, Walsh J. reiterated that Section 144 was very wide in its terms, that it included matters which an execution Court or appellate Court could not ordinarily deal with, that the word "party" was not used in the section in the limited sense of "party to suit" but may include assignees of the decree. The Allahabad case was quoted, with approval by Mockett J. in Kadirvelu v. Kempu A.I.R.1941 Mad. 315 where the learned Judge construed the word "party" as including persons who were subsequently concerned.

For the applicant learned advocate referred to Chintaman Singh v. Chuni Sahu A.I.R.1916 Pat. 299. In that case the appellants had obtained an ex parte decree for rent against the respondent in execution of which they caused the respondent''s holding to be put up for sale and purchased it themselves. Subsequently the ex parte decree was set aside and in the meantime the appellants had been placed in possession and they had reaped the crops. The respondent then instituted a suit claiming restitution on account of the value of the crops taken by the appellant. The respondent obtained a decree. In second appeal in the High Court it was argued that the suit was barred by Section 144, Clause (2). The Division Bench negatived this argument and remarked that Section 144 was intended to be confined to a case in which the decree had been varied or reversed by some superior Court and not to a case of an ex parte decree being varied or set aside by the same Court. When Order 9 gives the Court a right to set aside its own ex parte decree for sufficient cause, there appears to be no sufficient reason why the phrase "set aside" in Section 144 must be construed as "set aside by a superior Court." For the reasons already discussed, I consider (with greatest respect) that this decision is not correct.

On behalf of the applicant reference was made to Ashutosh Nandi and Another Vs. Kundal Kamini Dasi and Others, . In that case the facts were unusual. Defendant 3 filed a suit for arrears of rent against defendant 4 and obtained a decree and in execution of the decree he purchased the holding. Defendants 1 and 2 filed a suit against defendants 3 and 4 and obtained a decree that they were the owners and not defendant 3. They then filed an application u/s 144 against defendants 3 and 4 that the holding of which defendant 3 had taken possession should be given to them. If that case it cannot be said there was any variation or reversal of the decree and Section 144 could not be applied. Ghose J. observed that "a decree could only be varied or reversed within the meaning of Section 144 by an appeal, review or revision but not by a decree in a subsequent suit." But this is not the ratio of the case and the question at present in debate did not arise.

In Rameshwar Lal v. Ramcharan Pd. A.I.R.1938 Pat. 447 an application had been filed by the auction purchaser for refund of the amount paid by him after a suit under Order 21, Rule 63, Civil P.C., had been decreed and it had been held that the property did not belong to the judgment-debtor. Rowland J. considered that it was a case to which Section 144 did not apply but Section 151 did. In that case no decree had been ordered to be set aside and the statement of Rowland J. that for the application of Section 144 there must be variation or reversal of a decree by a Court of appeal was a dictum not necessary for decision of that case.

From this review of the authorities, emerges the answer to the question involved in the reference to the Full Bench. In my opinion the Court has jurisdiction to order restitution u/s 144 even if the decree is modified or reversed by a Court of co-ordinate jurisdiction in a separate suit. The section does not provide for an order of restitution to be made in any particular form or proceeding or by any particular Court. In the present case it is alleged that by virtue of the compromise in Title suit No. 126 of 1944 the decree in Title Suit No. 127 of 1939 so far as Khodaija was concerned was varied. According to the compromise recorded in the High Court the name of Khodaija was expunged from the category of defendant in Title Suit No. 127 of 1939. For the applicant it was contended that there was no variation or reversal of the decree of the previous title suit by reason of the compromise. But in his application to the Munsif, the opposite party alleged that by virtue of the compromise the decree of the title suit of 1939 was reversed with respect-to Mt. Khodaija. In para. 12 of the application the opposite party asserted that on the basis of the partition decree in the previous title suit, Mt. Najma had obtained delivery of possession of the property entered in Schedual. A inclusive of the property in Schedual. B which belonged to the share of Mt. Khodaija. The opposite party asked for being restored to the possession of property in Schedual. B from which he had been dispossessed by execution of the previous decree. On the allegations made there is no doubt that the Munsif had jurisdiction to entertain, the application u/s 144. In his order the Munsif held that the compromise in the High Court had the effect of reversing the decree of the title suit of 1939 with respect to Mt. Khodaija. He also found that the decree of 1939 had been executed, that partition had been effected and Najma was granted delivery of possession of her share. It is right to state that I do not wish to express any opinion whether the Munsif''s order of restitution is justified on merits. But it is patent that on the facts alleged and found by the Munsif to be established, the Munsif had jurisdiction to proceed u/s 144, Civil P.C.

It follows that an appeal lay to the District Judge from the order of the Munsif.

In my opinion this application in revision is incompetent and must be dismissed, but there will be no order as to costs.

Meredith J.

I agree.

Sinha J

I am also of the same opinion.