Naren Kumar Ghosh and Others vs Benod Behari Dutta and Another

Mookerjee, J.—This appeal arises out of certain proceeding for restitution initiated by the Decree-holder Respondents. Both the Courts below have allowed the prayer for restitution. Having obtained a mortgage-decree against Dharanidhar, the appellant in this Court, the predecessor-in-interest of the Respondents levied execution and on the 17th September, 1936, purchased the property in suit which was an undivided 5-12th share of a tank. The Decree-holder Auction-purchaser obtained an order from the Court under 21 Rule 95 of the CPC and possession was accordingly delivered to the said auction-purchaser on the 10th September, 1937.

The Judgment-debtor having moved a Debt Settlement Board under Sec. 37A (1) of the Bengal Agricultural Debtors Act, an order for restoring the Judgment-debtor to possession was obtained by him. In this petition the judgment-debtor stated that the decree-holder had been in possession from the 10th September, 1937. The D.S. Board allowed the judgment-debtor''s petition on the 7th May, 1945. The Board came to the conclusion that nothing was due to the mortgagee-creditor. In terms of sub-section (8) of Section 37A of the B.A.D. Act, a copy of the order was presented by the Debtor before the court of the Munsif by whose order the sale in execution of the mortgage-decree had been held. The Munsif thereupon directed on the nth March, 1947, that the sale be set aside. The judgment-debtor thereafter recovered possession on the 27th April, 1947.

The mortgagee-decree-holder moved the Debt Settlement Board for a review of the order declaring that nothing was due to the decree-holder and that the judgment-debtor was entitled to recover possession. The application for review was dismissed both by the Board as also by the Appellate Officer. The District Judge in revision allowed the application for review, set aside the order allowing the application u/s 37A of the B.A.D. Act and directed the Board to rehear the case. On the 12th April, 1948, the Special Officer who had by that time been functioning u/s 4 of the Act in place of the Board dismissed the debtor''s application u/s 37A of the Act. It was held that the debtor had continued in possession; it was not proved as required under clause (C) of sub-section (1) of section 37A that "the property sold was in the possession of the decree-holder on or after the Twentieth day of December, 1939."

The representatives of the mortgagee-decree-holder thereupon applied for restitution before the Munsif under whose orders the judgment debtor had been put in possession in April, 1947, after the application u/s 37A, of the B.A.D. Act had been allowed. The Munsif cancelled the order setting aside the sale as passed in March, 1937 and directed the heirs of the mortgagee-decree-holder to be placed in possession of the disputed property. The learned District Judge on appeal has affirmed this order. This appeal is directed against the order allowing restitution.

On behalf of the Judgment-debtor appellant Dr. Sen Gupta contends that as the Special Officer in dismissing the application u/s 37A of the B.A.D. Act had held that the mortgagee decree-holder had not been in possession, although he purported to have obtained possession in execution of his mortgage decree and that the judgment-debtor was continuing in possession, that decision by the Special Officer is binding on the parties. In this view the Decree-holders (?) must be deemed to be in possession and the present application for restitution dismissed. The principles underlying restitution are to be applied only for the purpose of placing the parties in the respective positions which they before the order, which has subsequently been modified or vacated, occupied. If on the finding of the Special Officer the judgment-debtor had been in possession from before April, 1947, such possession of his is not under the order of the Munsif which has now been set aside. The court is not entitled, it is urged, to disturb such earlier possession of the judgment-debtor.

On the other hand, Mr. Gupta appearing for the Decree-holders contends that the position now taken up by the judgment-debtor that he had continued in possession in spite of the delivery of possession by the Court to the decree-holder in September, 1937, is contrary and contradictory to the position taken up by him when he had made the application u/s 37A of the Bengal Agricultural Debtors Act. It has, however, to be noticed that so far as the creditor decree-holder is concerned he had resisted the prayer by the debtor u/s 37A of the B.A.D. Act on the ground that the creditor was not in possession. The creditor succeeded and could ultimately get the application u/s 37A dismissed by the Special Officer.

The peculiar position, therefore, in the present proceedings is that the judgment-debtor is relying upon a finding, in support of the case that he is in possession, contrary to the case originally made by him. On the other hand, the decree-holder having once before relied upon the absence of his possession from before the application u/s 37A of the B.A.D. Act now relies upon the fact of his possession as obtained in execution of the mortgage decree.

The principles underlying restitution are now well-settled. Section 144 of the CPC requires the Court "to place the parties in the position which they would have occupied but for such decree or part thereof as has been varied or reversed." It has been repeatedly held that this duty cast upon the Court is to be observed not merely under this section nor is the court''s jurisdiction limited thereby. "It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved"; Jai Barham vs. Kedar Nath Marwari 49 I.A. 351. The following observations by Cairns L.C. in Rodger vs. Comptoir ''Escompte de Paris L.R. 3 P.C. 465 is accepted as laying down the correct legal position. "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 lowest Court which entertains jurisdiction over the matter up to the Highest Court which finally disposes of the case."

It is unquestionable that if the possession which had been obtained in the present case by the creditor decree-holder in September, 1937, had been disturbed by an order of the Court in April, 1947, purporting to be under sec. 37A of the B.A.D. Act, that creditor is entitled to be put back to the same position as he had held previously to the disturbance of his possession in April, 1947.

It cannot also be disputed that if the judgment-debtor had been in possession of some interest in the property from before April, 1947, in whatever capacity or under whatever circumstances it might be, the Court while allowing restitution is not entitled to affect such possession of his. The duty and the jurisdiction of the Court in directing restitution is to place the parties in the position which they would have occupied but for the acts of the Court in April, 1947. Remembering that the original mortgage and the sale thereunder were of an undivided 5/12th share in the tank, the title to or possession in respect of the remaining 7/12th share was not affected either by the sale or by any order subsequently passed under sec. 37A of the B.A.D. Act.

As indicated already, each of the two contesting parties is now making a case about possession and dispossession which is clearly inconsistent with the earlier position taken up by either.

It is neither possible for the Court in the present proceedings nor desirable to enter into the question whether the judgment-debtor had some kind of possession or other in respect of any portion of the tank in question from before 27th April, 1947. The Court cannot allow him to continue to reap any benefit under the Court''s order delivering possession to him on the 27th April, 1947. If he had any possession, the allegations about which have had not been considered in the present proceedings, that cannot be affected by an order in the present proceedings.

There is one other fact to which reference was made in the Court below for consideration. After the order under sec. 37A, B.A.D. Act, was passed the judgment-debtor transferred his interest in the property to a third party who has not been impleaded in the present proceedings. The question as to the effect of the order of restitution on the rights of that third party transferee has been left open and in my view rightly.

It must accordingly be held that the creditor decree-holder is entitled to have his prayer for restitution allowed. To meet the justice of the case the result of the legal position as discussed above should be clearly indicated in the order. The form of the order passed by the trial Court is to be slightly modified. It be directed--that (1) the order setting aside the sale as passed by the Munsiff on the nth March, 1947, be set aside. (2) The representatives--in interest--of the creditor decree-holder are to be delivered, by the Court, symbolical possession of the 5/12th share of the tank in dispute which the decree-holder had obtained on the 10th September, 1937, and that the possession which had been obtained by the judgment-debtor on the 27th April, 1947, will cease, and (3) The interest of a transferee, if any, which was created during the pendency of these proceedings will not be affected by this order. Whether such transferee, had by such transfer, obtained any title or not cannot and is not decided in the present proceedings.

This appeal is accordingly dismissed. The form of the order as passed by the Courts below is modified in the manner indicated above.

In the circumstances of this case the parties will bear their respective costs in this Court. Let this record be sent down as early as possible.