Mahjibhai Mohanbhai Barot vs Patel Manibhai Gokalbhai and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 777 and 778 of 1964

Decision Date: 11 December 1964

Coram: A.K. Sarkar, Subba Rao, Raghubar Dayal, N. Rajagopala Ayyangar, J.R. Mudholkar

In the case Mahjibhai Mohanbhai Barot versus Patel Manibhai Gokalbhai and others, the Supreme Court rendered its judgment on 11 December 1964. The judgment was authored by Justice A. K. Sarkar, who sat with Justices Raghubar Dayal, N. Rajagopala Ayyangar and J. R. Mudholkar. The appellant, Mahjibhai Mohanbhai Barot, had instituted a suit seeking recovery of certain properties from the respondents, Patel Manibhai Gokalbhai and others. The trial court decreed in favour of the appellant, granting him title to the suit properties and awarding costs. The respondents appealed the trial‑court decree to the High Court. While the appeal was pending, the appellant executed the decree, took possession of the properties and recovered the awarded costs.

On 13 July 1949 the High Court set aside the trial‑court decree. Subsequently, on 24 August 1950 the appellate decree was amended by deleting the name of one of the decree‑holders, thereby modifying the rights of the parties under the decree. In response, the respondents filed two separate applications under section 144 of the Code of Civil Procedure, 1908. The first application, dated 11 February 1953, sought the costs awarded, while the second, dated 13 February 1953, sought restitution of the properties and reimbursement of the costs paid. The trial court ordered that execution of the decree should proceed, and the High Court, on appeal, confirmed that order.

The matter then reached the Supreme Court, where the respondents contended two points of law. First, they argued that the application for recovery of costs was barred by the limitation period prescribed in article 182 of the Limitation Act, 1908, because it was filed more than three years after the date of the appellate decree. Second, they maintained that the application for restitution was not an execution application and therefore fell under article 181 of the Limitation Act, which also imposes a three‑year limitation measured from the date when the right to apply accrues; consequently, they claimed that the restitution application was likewise time‑barred.

The Full Court held that the execution application for recovery of costs was timely. It observed that the amendment dated 24 August 1950, which struck out the name of one decree‑holder, resulted in a modification of the parties’ rights, making the case one in which the decree had been amended within the meaning of article 132(4) of the Limitation Act. Accordingly, an execution application could be filed within three years of the amendment, and the respondents’ application fell within that period. The Court further held, by a majority of Justices Subba Rao, Raghubar Dayal, Rajagopal Ayyangar and Mudholkar, that a fair construction of section 144 of the Code requires that an application for restitution be treated as an application for execution of a decree. Consequently, the restitution application was also within the statutory limitation period because it was filed within three years of the amended decree.

The Court observed that an application filed within three years from the date of the amended decree was timely, as reflected in the citations [455 B, H]. Considering the provision’s legislative history, the Court found no reason to treat the application as anything other than an execution of the appellate decree. The purpose of the provision was to define the scope of restitution in a clear and unambiguous manner. The provision does not convert an application for restitution, which prior to the 1908 Code was regarded as an execution application, into an original petition. Whether an application constitutes execution of a decree or an original suit depends on the character of the relief sought and the nature of the remedy requested. When a party loses property as a result of execution of a decree, that party may seek to recover the property based on a favorable appellate decree. In that situation, the Court held that the party is not initiating a fresh proceeding but is only working out the effect of the appellate decree. The Court warned that it would be inconsistent to call a restitution application an original petition when the appellate decree lacks a restitution direction, yet call it an execution application when such a direction exists. The Court noted that section 47 makes section 144 unnecessary, because section 144 was enacted to prescribe procedure, define court powers, and bar suits for relief already available under section 47. The Court held that locating section 144 in the Miscellaneous part of the Code for convenience does not change the substantive question of whether a restitution application is an execution application. The Court noted that such placement is only a relevant circumstance and does not decide the issue. The Court explained that section 144’s requirement that the application be filed in the “court of first instance” does not alone determine its character. Likewise, section 38’s provision allowing execution by either the court that passed the decree or the court to which it is sent does not convert a section 144 application into an execution application. Under section 37, the term “court which passed a decree” includes the “court of first instance” when the decree to be executed originates from appellate jurisdiction. The Court observed that an execution application governed by section 47 does not stop being an execution application merely because section 47 is defined as part of a “decree” under article 2(2). Similarly, an execution application under section 144 cannot cease to be an execution application simply because section 144 is also included in the definition of “decree.” The Court concluded that both sections were incorporated into the Code solely for the purpose of providing the procedural framework needed for execution matters.

In the judgment, the Court observed that treating an application for restitution as something other than an execution proceeding would create difficulties, especially under sections 6, 7 and 15 of the Limitation Act. The Court noted that the presence of such difficulties is irrelevant when a statutory provision is clear and unambiguous, but it becomes important when the wording of the provision is uncertain. Moreover, the Court stated that where a procedural rule dealing with execution can be understood in two opposite ways, the preferred construction is the one that preserves the balance in the field of execution rather than disturbing it. The dissenting opinion of Justice Sarkar was then explained. Justice Sarkar held that the application filed under section 144 does not constitute an execution proceeding and therefore is not governed by article 182 of the Limitation Act but by article 181. According to article 181, the limitation period begins to run from the moment the right to apply arises, and the period provided is three years; consequently, the application for restitution would be time‑barred. Justice Sarkar further argued that, besides the fact that the application is not described as an execution, the language of the section that authorises an order for the purpose of effecting restitution indicates that the order itself is to be executed in order to obtain restitution, and therefore the earlier application that resulted in such an order could not be characterised as an execution application. He continued that, if an application under section 144 were treated as an execution proceeding, then the provision in the same section prohibiting the institution of a suit 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 become unnecessary because section 47 already addresses the same point. Section 47 bars a suit that seeks the same relief as the determination of any question under section 144, and that determination is already part of the definition of decree. Justice Sarkar also highlighted that section 144 requires the application to be made to “the Court of first instance” and not to a transferee court, whereas sections 38 and 39 together with Order XXI, rule 10, require a decree holder who wishes to execute the decree to apply to the court to which the decree has been sent for execution. He further observed that while section 583 of the Code of 1882 expressly provided that restitution would be carried out by way of execution, section 144 of the Code of 1908 deliberately omits any reference to execution. This change in terminology, he argued, suggests that the legislature intended the procedure under the newer section to be different from an execution process. Finally, Justice Sarkar concluded that if the language of the section plainly shows that the procedure is not to be by way of execution, it would be improper to reinterpret the provision merely to avoid the loss of the benefits granted by sections 6, 7 and 15 of the Limitation Act.

It was held that the right to seek restitution became operative only when the appellate decree was amended, because section 9 of the Limitation Act provides that the limitation period commences from the date on which the appellate decree first gave rise to the right to apply. The judgment was rendered in a civil appellate jurisdiction concerning Civil Appeals Nos 777 and 778 of 1964. These appeals were taken by special leave from the judgment and order dated 5 March 1964 of the Gujarat High Court in First Appeals Nos 111 and 112 of 1960. Counsel for the appellant in both appeals was engaged, while counsel for respondents 2 and 3 represented the opposing side. Justice Sarkar delivered a dissenting opinion, and the main judgment was delivered by Justice Subba Rao, with Justices Raghubar Dayal, Ayyangar and Mudholkar joining. The matters before the Court arose from two separate miscellaneous applications presented to the trial court, which was the Court of the Civil Judge, Nadiad, in Gujarat. One application sought execution of orders awarding costs, and the other was filed under section 144 of the Code of Civil Procedure to obtain restitution of money and property that had been taken in execution of a decree that was later reversed on appeal.

The appellant identified himself as the successor‑in‑interest of the original plaintiff in the suit that gave rise to these proceedings, while the respondents were the defendants in that suit. The predecessor‑in‑interest of the appellant had originally instituted a suit for possession of land against the respondents and another individual who is now deceased. The trial court decreed in favour of the plaintiff, awarding costs, on 30 November 1945; however, that decree was set aside on 13 July 1949 by an appeal filed by the defendants before the High Court of Bombay. During the pendency of that appeal, the predecessor‑in‑interest of the appellant had, by virtue of the decree, taken possession of the land and had realised the awarded costs. While the appeal was still pending, the predecessor‑in‑interest died and the present appellant was substituted in his place. After the appellate decree had been prepared, it was amended on 24 August 1950 by deleting the name of one of the original defendants, on the ground of his death. The appellant subsequently obtained special leave from this Court under Article 136 of the Constitution to appeal from the appellate decree, but that leave was revoked on 24 November 1952 because the appellant failed to fulfil the condition attached to the leave. On 11 February 1953, the respondents filed in the trial court an application for execution to recover the costs awarded to them up to the date of the revocation of leave, and that application gave rise to one of the present appeals. On 13 February 1953, the respondents filed the second application under section 144 of the Code, seeking restitution of the land that had been taken and the costs realised from them in execution of the trial court’s decree, and that filing gave rise to the other appeal.

In this case, the Court observed that the second appeal had also arisen, and that the sole issue presented in each appeal was whether the respective applications were barred by limitation. Regarding the application for execution, the Court agreed with the other judge, Subba Rao, that the application was not time‑barred and therefore ordered that appeal No 777 of 1964 be dismissed, stating that it had nothing further to add to the reasoning already expressed in that judgment. Turning to the other application, which sought restitution under section 144 of the Code, the Court reached a conclusion different from that of the other judge. The Court reiterated that the essential question, as previously mentioned, was whether the restitution application had been filed after the prescribed period and thus was barred. The appellant, who was the defendant in that application, argued that an application under section 144 did not constitute an execution proceeding and should therefore be governed by article 181 of the Limitation Act, which applies to actions not specially listed in the Schedule, rather than by article 182 which relates to execution. Conversely, the respondents, who were seeking restitution, contended that the matter fell within article 182 because, in their view, the application was essentially an execution. The Court noted that, setting aside certain issues to be addressed later, it was undisputed that if article 181 applied, the claim would be time‑barred, whereas application of article 182 would render it timely. Consequently, the central issue before the Court was whether an application under section 144 constitutes an execution application. The Court recognized that the High Courts had expressed widely divergent opinions on this point, and it deemed it unnecessary to repeat the detailed reasons advanced in those judgments, since those arguments would be examined in substance later. The Court concluded that an application under section 144 is not an execution application and proceeded to explain its reasoning. The first step, the Court explained, was to examine the language of section 144 itself. In that examination, the Court found that the provision contains no reference to execution and is not placed within any chapter dealing with execution. The section provides that when a party becomes entitled to restitution because a decree has been varied or reversed, the Court of first instance shall, upon that party’s application, cause restitution to be made, and that the Court may, meaning shall, issue any orders necessary to effect the restitution. Because the application is not described as an execution proceeding, and because the provision authorises the Court to issue an order to effect restitution, the Court inferred that it is the order, not the application, that is to be executed for the purpose of securing restitution. The Court further observed that the section could not contemplate two separate execution applications; therefore, the earlier application that resulted in the order could not itself be an execution application.

It was observed that the reference mentioned in the section could not be an application for execution. The Court considered that, based solely on the language of the section and without examining any other material, it was impossible to conclude that the application envisioned by the provision was an execution proceeding. Moreover, the Court identified several additional reasons showing that the application contemplated by the section was not intended to be an execution. Firstly, if the application were indeed an execution, then Section 47 of the Code would bar the filing of a suit for the same relief, making the additional safeguard in sub‑section (2) of Section 144—stating that no suit shall be instituted for the purpose of obtaining restitution—unnecessary. Secondly, when the Court examined the definition of “decree” in Section 2, sub‑section (2), it found that the definition expressly includes the determination of a question arising under Section 144. This inclusion would be redundant if that question were to be decided in execution proceedings, because such matters would already fall within the definition of decree through the part that covers the determination of any question under Section 47, which deals with questions arising in execution. Finally, the Court turned to the procedural requirements of Section 144, which mandates that the application be made to “the Court of first instance.” In contrast, Section 38—located in the part of the Code dealing with execution—provides that a decree may be executed either by the court that passed it or by the court to which it is sent for execution. Section 39 allows the transfer of a decree for execution to another court, and Order 21, rule 10, requires the holder of a decree who wishes to execute it, after the decree has been sent to another court, to apply to that receiving court. Section 144, however, does not permit an application to be filed with a transferee court, indicating that it was not intended to be an application for execution. The Court also noted that the phrase “court of first instance” must be interpreted broadly to include, where the original court no longer exists, a court that now has jurisdiction over the territory previously served by the abolished court, a view previously endorsed in Panchapakesa Aiyar v. Natesa Pathar. The Court further recorded the respondent’s contention that Section 144 of the 1908 Code was meant to replace the analogous provisions of Section 583 of the 1882 Code, essentially reenacting the earlier provision, and that interpretation should therefore consider the defects of the older provision that the new section sought to remedy. The Court concluded that even this approach did not support the argument that Section 144 contemplated an application in execution.

In this case the Court examined whether a petition filed under section 144 of the Code of Civil Procedure constituted an application in execution. The Court first noted that the predecessor provision, section 583 of the earlier Code of 1882, expressly required that restitution be obtained by way of an execution. Although the Court recognised that various High Courts had expressed difficulty and divergent opinions on several questions arising under section 583, it held that there was never any doubt that the earlier provision prescribed a procedure by execution for obtaining restitution. Consequently, the Court concluded that the older provision could not be used to support the view that a petition under the new section must also be an application in execution. In fact, the Court observed that the older section led to the opposite conclusion, because while it explicitly mentioned execution, the present provision deliberately omitted any reference to execution. This change in terminology, the Court said, indicated an intention that the procedure laid down in section 144 was not to be an execution. The Court further stated that the difficulties encountered under section 583 were irrelevant to the present discussion and offered no assistance in resolving the issue before it.

The Court then considered the argument that, if a restitution application under section 144 were not deemed an execution, minors and other persons would lose the benefit of sections 6 and 7 of the Limitation Act, and that the benefit of section 15 of that Act would also be unavailable to such applications. The Court observed that the language of section 144 itself clearly showed that the procedure was not by way of execution, and that it would be improper to reinterpret the provision solely to avoid depriving parties of benefits conferred by another Act. Moreover, the Court pointed out that many applications falling within article 181 of the Limitation Act, other than those filed under section 144, would also not enjoy the benefits of sections 6, 7 and 15. It could not be said that the provisions of the Code of Civil Procedure giving rise to those other kinds of applications could all be altered to incorporate the benefits of the aforementioned sections of the Limitation Act. The Court noted that the purpose of sections 6, 7 and 15 of the Limitation Act was to make their benefit available only in cases that fell within their specific scope. Accordingly, the Court was unable to accept the contention that the consideration of those sections of the Limitation Act was relevant to the present enquiry.

For all of these reasons, the Court held that an application contemplated by section 144 of the Code was not an application in execution. Consequently, the application was not governed by article 182 of the Limitation Act, which deals with execution, but was instead governed by article 181. The Court affirmed that there was no dispute that, if article 182 did not apply, article 181 would apply. Under article 181, the limitation period begins to run from the date on which the right to apply accrues.

The Court observed that the limitation period provided by Article 181 of the Limitation Act began to run from the moment the right to make an application first accrued, and that the period was three years. The Court considered that if that right had arisen on the date of the appellate decree, which was July 13, 1949, then the three‑year limitation would have expired before the restitution application was filed on February 13, 1953, thereby rendering the application time‑ barred. The Court noted, however, that the appellate decree was subsequently amended on August 24, 1950 by deleting the name of one of the appellants who had died. The respondents argued that, even assuming Article 181 applied, the right to apply should be taken to have accrued only when the amendment was made, because before that date the respondents could not have filed the application; they contended that computing the limitation from the amendment date would avoid the bar. The Court rejected this contention, relying on Section 9 of the Limitation Act, which provides that once the limitation period starts it continues without interruption. The Court affirmed that there was no dispute that the limitation period had begun on the date of the appellate decree, when the right first arose, and therefore the amendment could not restart the clock.

The Court also addressed the respondents’ final argument that the limitation period should be measured from the date on which this Court withdrew the special leave to appeal that had been granted under Article 136. The Court found no legal authority to support such a basis for resetting the limitation period. Consequently, the Court concluded that the restitution application filed on February 13, 1953 was filed beyond the applicable limitation period. Accordingly, the Court allowed appeal No. 778 of 1964, which originated from Miscellaneous Application No. 16 of 1953, and dismissed the other appeal that had been raised.

The Court then set out the background of the proceedings. The appeals before the Court were filed by special leave and concerned, among other issues, whether Article 181 or Article 182 of the Limitation Act governs an application filed under section 144 of the Code of Civil Procedure, 1908. The factual matrix was summarized as follows. Mohanbhai instituted Special Jurisdiction Suit No. 28 of 1943 before the Civil Judge, Senior Division, at Nadiad, seeking possession of certain properties described in the schedule annexed to the plaint. The defendants, numbered 1 to 5, claimed possession of those properties in their capacity as trustees under a will executed by Mohanbhai’s brother Chhabaji; additional defendants were alleged to be sevaks appointed by the trustees to manage some of the trust property. On November 30, 1945, the trial judge decreed the suit in favour of the plaintiffs. The three trustees and the sevaks subsequently filed Appeal No. 317 of 1946 to the High Court of Bombay. While the appeal was pending, on November 8, 1946, Mohanbhai obtained possession of the suit properties by execution of the trial court’s decree and also recovered a sum of Rs. 1,290‑3‑0 as costs awarded by the trial court. During the pendency of the appeal, Mohanbhai died, and his son, who is the present appellant, was substituted in his place. The High Court, on July 13, 1949, set aside the trial court’s decree and dismissed the suit with costs. This judgment forms the factual backdrop for the limitation analysis that follows.

The appellate decree was prepared, and the decree‑holders submitted an application in the High Court requesting that the name of appellant number 7 be removed because of his death. The High Court granted this application on 24 August 1950 and accordingly deleted the name of appellant number 7 from the decree. Subsequently, the appellant sought a certificate from the High Court that would allow him to appeal to this Court, but that application was dismissed on 9 January 1951. Following that dismissal, the appellant filed a petition in this Court requesting special leave to appeal. On 16 April 1952, this Court granted the special leave. However, the appellant failed to satisfy the conditions attached to the grant of special leave, and consequently, on 24 November 1952, this Court rescinded the special leave. After the rescission, the respondents filed two separate applications in the Trial Court. The first, designated Special Darkhast No. 7 of 1953, was lodged on 11 February 1953 and sought recovery of the costs of the suit, the appeal and various miscellaneous applications that had been awarded against the appellant. The second, identified as Miscellaneous Application No. 16 of 1953, was filed on 13 February 1953 under section 144 of the Code of Civil Procedure and prayed for the restitution of the estate of Chhabaji, which had come into the appellant’s possession, as well as the recovery of a sum of Rs 1,290‑3‑0 that the trustees had paid to Mohanbai in execution of the Trial Court’s decree. The appellant argued that both applications were barred by the limitation period.

The Trial Court judge examined the limitation issues and held that clause (2) of Article 182 of the Limitation Act applied to the circumstances, meaning that the limitation period commenced on 24 November 1952, the date this Court revoked the special leave, and therefore both applications were filed within the three‑year limitation and were timely. Alternatively, the judge held that because the decree had been amended on 24 August 1950 when the deceased trustee’s name was deleted, clause (4) of Article 182 would set the limitation period from that amendment date, again placing both applications within time. Based on these findings, the Trial Court ordered that execution proceed on both applications. The appellant then appealed this order to the High Court. Before the High Court, counsel for the appellant contended that, with respect to the restitution application, Article 181 of the Limitation Act should apply, which would render the application time‑barred because it was not filed within three years of the decree date. Alternatively, the appellant argued that even if Article 182 governed, both applications would still be barred by limitation. The High Court concluded that both applications fell under Article 182 of the Limitation Act and that the limitation period began to run from the date the decree was amended on 24 August 1950, thereby confirming the Trial Court’s order.

In this case the Court noted that the decree was amended on 24 August 1950 by deleting the name of the deceased trustee and that both applications had been filed within three years of that amendment, so they were deemed to be within the prescribed period; consequently the Court affirmed the order of the Trial Court and allowed the appeals. The learned counsel for the appellant, Dr Barlingay, then raised two main points before the Court. First, he submitted that an application for restitution filed under section 144 of the Code of Civil Procedure is not an application for the execution of a decree and therefore is not governed by article 182 of the Limitation Act, which prescribes the limitation period for execution of decrees, but is instead governed by article 181, the residuary article of limitation. Second, he argued that under article 181 the three‑year limitation period begins to run from the date on which the right to apply accrues; accordingly, the appellant claimed that the respondents’ right to seek restitution accrued when their appeal to the High Court was allowed on 13 July 1949, making the restitution application time‑barred. He further contended that the amendment dated 24 August 1950 would not assist the respondents because the seventh respondent – who was the seventh appellant in the High Court – died after that appellate decision, that is, after the respondents’ right to apply had already arisen; consequently, the second application, identified as Special Darkhast No 7 of 1953 for recovery of costs, was also barred by limitation under article 182 because it was filed more than three years after the appellate decree. Moreover, he maintained that the amendment of 24 August 1950 was merely a correction of a clerical mistake and therefore did not constitute an amendment within the meaning of clause (4) of article 182. On the other side, the learned counsel for the respondents, Mr I.N. Shroff, contended that both applications fell within article 182 of the Limitation Act and were saved both by clause (2) and clause (4) thereof. He further argued that even if article 181 applied to the restitution application, it would still be within time because the respondents’ right to apply either arose on the date the Supreme Court set aside the special leave previously granted to the appellant, that is 24 November 1952, or at the very least on the date of the amendment, 24 August 1950. The Court then proceeded to examine the issue of limitation as it pertains to an application for restitution, beginning by reading the relevant provisions of the Code of Civil Procedure and the Limitation Act, particularly section 144 of the Code, which provides that where 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 so as to place the parties in the position they would have occupied but for the varied or reversed decree, and may also make orders for refund of costs, interest, damages, compensation, and mesne profits. The Court also noted the complementary provision that no suit shall be instituted for obtaining any restitution or other relief that could be obtained by an application under subsection (1).

The Court explained that when a party is entitled to any benefit by way of restitution or by any other means, the court must cause such restitution to be made so far as possible to place the parties in the position they would have occupied but for the decree, or the part of the decree, that has been varied or reversed. To achieve this, the court is empowered to issue any orders that are properly consequential, including orders for the refund of costs, the payment of interest, damages, compensation and mesne profits. The provision further provides that no suit may be instituted for the purpose of obtaining restitution or any other relief that could be obtained by making an application under sub‑section (1) of the same section.

In the First Schedule of the Limitation Act, two articles are relevant to applications of this kind. Article 181 applies to applications for which no period of limitation is prescribed elsewhere; under this article a three‑year limitation period begins to run from the time when the right to apply accrues. Article 182 deals with applications for the execution of a decree and also sets a three‑year limitation period. The period under Article 182 starts from whichever of the following dates is applicable: (i) the date on which a decree or order was made; (ii) the date on which an appeal was filed, the appeal was withdrawn or an appeal was decided; (iii) the date on which a review of the judgment was decided; or (iv) the date on which the decree was amended. Accordingly, if an application falls within the category of execution of a decree, Article 182 governs the limitation; if it does not fall within that category and no other specific limitation provision applies, Article 181 governs.

The Court then turned to the difficult question of whether an application for restitution under section 144 of the Code of Civil Procedure should be classified as an application for the execution of a decree. Section 144 itself does not expressly state that a restitution application is or is not an execution application, so its true nature must be determined by interpreting the provision. To “execute” a decree means to give effect to the terms of the decree, whereas to “restitute” means to restore to a party the benefit that the other party received under a decree later found to be erroneous. The Court observed that there is no strict dichotomy between execution and restitution because a decree may be executable for the purpose of restitution. The Court also noted that various High Courts have expressed sharply differing opinions on whether a restitution application constitutes an execution of a decree, indicating that the issue remains unsettled and open to diverse interpretations.

In order to interpret section 144 of the Code of Civil Procedure, the Court considered the rule of construction articulated by Lord Coke and later adopted by Maxwell. The rule, as set out in Maxwell on Interpretation of Statutes (11th edition, page 18), requires that the true meaning of a provision be discovered by forming a precise understanding of the purpose, scope and object of the entire Act. According to Lord Coke, this entails examining four points: the law that existed before the Act was enacted; the mischief or defect that the previous law failed to address; the remedy that Parliament chose to provide; and the reason for that remedy. Applying this rule of construction, the Court first addressed the issue under a well‑known authority, Halsbury’s Laws of England (2nd edition, volume 14, page 38, paragraph 69), which states the English position as follows: “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 passage indicates that, under English law, an appellate order that overturns the original decree may itself contain a direction for restitution, or the court may issue a separate order or a writ of restitution. The Court then noted that the Code of Civil Procedure of 1859 contained no specific provision for restitution. Nevertheless, the scope of the restitution doctrine had been examined by the Judicial Committee in Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery (1) [1865] 10 M.I.A. 203, 211, where the Committee expressed the principle that “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 proceeding. 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 Committee explained that the central question in such cases is whether the decree or judgment from which the money was originally recovered has been reversed or superseded. Applying that test to the present facts, the Committee held that the decrees obtained by Tara Purshad against Doogra Purshad were superseded by the Order of Her Majesty in Council pronounced in 1849, and that the 1849 Order was intended to settle all rights and liabilities of the parties under its terms.

The Court observed that allowing the decrees obtained by Tara Purshad, while the appeal on those decrees was still pending, would violate the earlier Order because such decrees would interfere with the purpose of that Order. Although the cited passage discussed the supersession of a decree not through an appeal but by a decision of the Privy Council in a collateral proceeding, the Judicial Committee clearly stated that the rights and liabilities of the parties must be dealt with only under the decree that supersedes the earlier one. The passage also reiterated the English principle that restitution may be effected either by a summary process or by filing a new suit or action. The Code of Civil Procedure, 1882, for the first time introduced section 583 to provide a mechanism for restitution. Section 583 reads: “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 provision, any party who is entitled to a benefit under an appellate decree may file an application before the court that originally passed the decree against which the appeal was filed, seeking execution of the appellate decree. The critical language of the section is “benefit by way of restitution or otherwise under a decree.” The Court considered whether this language required an appellate decree to contain an explicit direction to restore any property taken by the respondent in execution of the first‑court decree, or whether it also encompassed any benefit to which the decree‑holder becomes entitled as a result of the reversal.

The Court held that section 583 confers a right to restitution even when the decree does not specifically provide for restitution, as reflected in the decisions in Balvantrav v. Sadrudin (1) and Rohini Singh v. Hodding (2). A plain reading of the section shows that an application for restitution under it is essentially an application for execution of an appellate decree. The Privy Council, in Prag Narain Kamakhia Singh (3), ruled that a separate suit for restitution would not be permissible and that the relief contemplated by section 583 could be obtained only through execution proceedings under sections 583 and 244 of the Code of Civil Procedure. Consequently, an application made to obtain restitution under a decree in accordance with section 583 of the Code of Civil Procedure, 1982, is a proceeding in execution of that decree. All High Courts, except one, have treated such restitution proceedings as execution proceedings within the meaning of Article 179 of the Limitation Act, 1877, as shown in Venkayya v. Raghavacharlu (4), Nand Ram v. Sita Ram (5), and Jeddi Subraya Venkatesh Shanboah v. Ramrao Ramchandra Murdeshvar (6). The Court noted that there remained a conflict regarding whether mesne profit for the period of dispossession could be recovered solely under section 583 or required an ordinary suit.

In the case under consideration, the Court explained that a party could recover the mesne profits for the period of dispossession only either under the specific statutory provision or by filing a regular suit. The Court then set out the legal position contained in section 583 of the Code of Civil Procedure, 1882. According to that provision, a party who obtained a benefit under an appellate decree could realise that benefit by executing the decree through the court that had originally passed the decree against which the appeal was filed. The appellate court, when it set aside or modified the decree of the first court, could issue a direction for restitution. Even if the appellate court did not expressly issue such a direction, the Court held that the direction must be implied, because the appellate court could not have intended a different result. The very act of setting aside the original decree necessarily implied that the parties should be restored to their original position. On that basis, the courts construed the provision to mean that the decree was executable as if it expressly contained a restitution direction.

The Court noted that an application for restitution made under section 583 was governed by Article 179 of the Limitation Act, 1887. The Court cited several authorities that had applied that principle, including the decisions reported in I.L.R. 13 Bombay 485 (1889), I.L.R. 21 Calcutta 34 (1894), I.L.R. 31 All 551 (1939), I.L.R. 2‑3 Madras 448 (1897), I.L.R. 8 All 545 (1886) and I.L.R. 22 Bombay 998 (1898), which correspond to Article 182 of the present Act. The Court further observed that no separate suit lay for the relief of restitution of such a benefit, because the Privy Council had held that such a suit was barred by section 244 of the Code of Civil Procedure, which corresponds to the present section 47 of the Code.

The Court explained that the language of section 244 was limited to a party who was entitled to a benefit by way of restitution or otherwise under a decree passed in appeal, and did not extend to benefits arising under any other proceeding. In view of this limitation, the Legislature, when enacting the Code of Civil Procedure, 1908, introduced section 144, which is broader than section 583 of the 1882 Code. Section 144 of the present Code does not create a new right of restitution. The Court quoted the Judicial Committee in Jai Berham v. Kedar Nath Marwari, stating that the duty of the court under section 144 is to place the parties in the position they would have occupied but for the part of the decree that has been varied or reversed. The Court clarified that this duty does not arise solely from section 144; rather, it is part of the court’s general jurisdiction to act fairly and correctly according to the circumstances.

Finally, the Court observed that section 144 was enacted to avoid the earlier conflict. It prescribes the procedure, defines the powers of the court, and expressly bars the filing of a suit for relief that is obtainable under this section. The provision does not, either expressly or by necessary implication, alter the nature of the proceedings. Its purpose is limited to preventing conflict and making the scope of restitution clear and unambiguous.

The Court explained that the purpose of the provision was to make the scope of restitution clear and unambiguous, and it did not declare that an application for restitution, which before the new Procedure Code was treated as an application for execution, should now be regarded as an original petition. The Court held that whether an application is one for execution of a decree or an original application depends on the nature of the application and the relief that is claimed. When a party who has lost his property as a result of the execution of a decree seeks to recover that property on the basis of an appellate decree that is favourable to him, the party is not commencing a new original proceeding. Rather, he is merely concerned with giving effect to the appellate decree that is already in his favour. The application therefore arises from the appellate decree and is filed for the purpose of implementing or enforcing that decree. Because the appellate decree enables the party to obtain restitution, either expressly or by necessary implication, he is entitled to that relief. The Court noted that, on a preliminary basis and having regard to the history of the section, there is no reason why such an application should not be treated as an application for the execution of the appellate decree. The Court then turned to the arguments advanced for the opposite view. Counsel for the appellant contended that when an appellate Court sets aside the decree of a lower Court without expressly providing for restitution, there is no executable decree for restitution. The Court observed that this argument inevitably concedes that if the appellate Court does provide for restitution, the application for restitution would be an application for execution of a decree. Even if the application is characterised as an execution proceeding, the procedure to be followed and the power of the Court to order restitution would be limited to the provisions of section 144 of the Code of Civil Procedure. Consequently, an execution application for restitution would be governed by section 144. The Court warned that accepting the appellant’s line of reasoning would produce inconsistent outcomes. If the appellate decree contains a direction for restitution, the application would be an execution application; if it lacks such a direction, the application would become an original petition. The Court suggested that this inconsistency could be avoided by implying a direction for restitution in every appellate decree that sets aside or modifies a lower‑court decree, even when the decree does not expressly state such a direction. The Court also considered a second objection, which argued that if the view of the High Court were correct, section 144 would become redundant because section 47 of the Code covers the same field. The Court pointed out that under the 1882 Act there were two analogous sections – section 583, which corresponded in part to the present section 144, and section 244, which corresponded to the present section 47. Even under the old Code there had been a conflict as to the scope of restitution and as to the question of whether a suit was barred in a civil Court, demonstrating that the newer provisions were intended to resolve those earlier ambiguities.

In this case the Court explained that Section 144 of the Code of Civil Procedure, 1908, had been enacted expressly to remove any conflict, to clear up uncertainties, and to define the authority of a civil court with respect to restitution. The Court noted that sub‑section (2) of that provision had been added in order to put an end to any further debate about whether a suit was barred by the existence of a decree. The Court then turned to the criticism that, although execution proceedings were confined to Part XI and Order XXI of the Code, the Legislature had placed Section 144 in Part XI under the heading “Miscellaneous”. The purpose of that placement, the Court said, was presumably to make clear that an application for restitution was not to be treated as an execution application. The Court observed that the fact that a provision is located in a part of the Code dealing with a specific subject may support the view that the provision relates to that subject, but that reasoning could not be extended when the provision appears in a part that is labelled “Miscellaneous”. By its very title, the “Miscellaneous” part indicated that the sections contained therein could not be fully assigned to any single subject‑specific part, either because they fell outside the scope of the other parts or because they could not be wholly confined within a particular part. Consequently, such sections might have a broad scope that cut across several distinct subject areas. The Court therefore held that the presence of Section 144 in Part XI did not, by itself, determine the character of an application filed under it. It was possible that Section 144 could have been placed in Part III, since the relief of restitution might cover matters beyond those arising from the execution of a decree of an appellate court, apart from the decree of the court that was under appeal. The Court further pointed out that there existed a genuine dispute as to whether Section 144 applied to an order setting aside an ex‑parte decree, to a decree that set aside another decree in a collateral proceeding, or to dependent decrees, among other situations. The Court added that even under the earlier Code, the provision corresponding to Section 144 (that is, Section 583) had not been situated in the chapter on execution but rather in the chapter on appeals. Moreover, the Court recognized that some provisions in Part XI, such as Sections 132(2), 135(3) and 135A, did pertain partly to execution matters, but the mere convenience of arranging a provision in a particular part could not be used to decide whether the application was truly an execution application. Finally, the Court rejected the argument that treating an application under Section 144 as an execution application would be inconsistent with Section 38, because Section 144 limited the filing of an application to the court of first instance, whereas Section 38 allowed a decree to be executed either by the court that passed it or by the court to which it was sent for execution, a distinction clarified further by Section 37.

In this judgment, the Court explained that the expression “Court which passed a decree” must be interpreted to include two specific situations. First, when the decree to be executed has been issued while the court was exercising appellate jurisdiction, the court of first instance is deemed to be the “Court which passed a decree.” Second, when the court of first instance no longer exists or has lost jurisdiction to execute the decree, the court that would have had jurisdiction to try the suit at the time the execution application was made is also included within the meaning of the phrase. Consequently, the Court held that the language “Court which passed a decree” expressly covers the court of first instance when the decree was rendered in the exercise of appellate jurisdiction. By reading sections 37 and 38 together, the Court concluded that the court of first instance is the “Court which passed the decree” within the meaning of section 38, and therefore an execution application may be filed in that court. If the court of first instance is regarded as the court that passed the decree, the Court saw no difficulty in allowing the senior court to transfer the decree under section 39 of the Code of Civil Procedure.

The Court further observed that the contention that a determination under section 144 of the Code falls within the definition of a decree under section 2(2) is irrelevant to the issue before it. The definition in section 2(2) encompasses both an order made under section 47 and an order made under section 144, and both provisions are included solely to grant a right of appeal. The Court reasoned that if an execution application governed by section 47 does not cease to be an execution application merely because that section is part of the definition of “decree,” then an execution application under section 144 cannot cease to be an execution application for the same reason. Accepting the appellant’s argument, the Court warned, would produce numerous inconsistencies.

For example, the Court noted that if a respondent failed to execute a decree in his favour and the appeal was dismissed, the limitation period for executing the decree would be governed by Article 182 of the Limitation Act. Conversely, if the respondent executed the decree, illegally appropriated the property, and the appeal was allowed, the limitation period for restitution would be governed by Article 181 of the Limitation Act. Likewise, if the appellate court directed restitution in the decree, the limitation period for execution would follow Article 182, whereas in the absence of such a direction the period would follow Article 181. The Court also pointed out that a minor or a person under disability who was an appellant could not benefit from the extensions of time provided in sections 6 and 7 of the Limitation Act by filing a restitution application, even though the appeal was allowed in his favour.

The Court explained that when an appeal was dismissed, a respondent who was a minor or otherwise incapacitated would be entitled to the statutory extension provided for execution of the decree. The Court observed that if an application for restitution were characterised as other than an application for execution of a decree, it would be governed by section 15 of the Limitation Act. If, in addition, a second appellate court stayed the restitution, the period during which the party could not file the application could not be excluded. Consequently, the restitution claim would become time‑ barred even if the appeal were ultimately dismissed. The Court noted that the construction advocated by counsel for the appellant would produce the described anomalies. The Court explained that the presence of such anomalies is irrelevant when the statutory provision is clear and unambiguous, but becomes significant when the provision itself is ambiguous. The Court noted that a strong divergent body of judicial opinion exists concerning the interpretation of Section 144 of the Code of Civil Procedure. The Madras High Court, in Somasundaram v. Chokkalingam (1) and Chittoori Venkatarao v. Chekka Suryanarayana (2), held that an application under Section 144 is an application for execution. The Bombay High Court, in Kurgodigouda v. Ningangouda (8) and Hamidalli v. Ahmedalli (4), expressed the same view. The Patna High Court, in Bhaunath v. Kedarnath (5), and the Chief Court of Oudh, in Chandika v. Bital (6), held that the application under Section 144 is an application for execution. The Rangoon High Court, in A.M.K.C.T. Muthuukarauppan Chettiar v. Annamalai (7), held that an application under Section 144 is an application for execution. The High Court of Travancore‑Cochin, in Kochu Vareed v. Mariyam (8), and the Madhya Pradesh High Court, in Choudhary Hariram v. Pooran Singh (9), also held the same. Conversely, the Allahabad High Court, in Parmeshwar Singh v. Sitaldin Dube ( ), held that such an application is not for execution. The Calcutta High Court, in Sarojebhushan v. Debendranath (11) and Hari Mohan Dalal v. Parmeshwar Shau (12), held that the application is not an application for execution. The Nagpur High Court, in Khwaja Allawali Kesarimal (13), and the Punjab High Court, in Mela Ram v. Dharam Chand and Amrit Lal (14), held it is not an application for execution. The Court stated that it had examined the cited judgments carefully and had derived great assistance from them. It explained that it did not discuss each authority individually because it had, in substance, addressed all the divergent views. The Court acknowledged that the alternative construction advanced by the appellant remains a conceivable interpretation. On a procedural execution matter, the Court observed that when a statute admits two conflicting constructions, the appropriate approach is to adopt the construction that preserves the balance in execution. It further noted that the construction should not disturb the equilibrium in the execution process. The Court also mentioned the historical background of Section 144 of the Code of Civil Procedure and the acceptance.

Reference was made to a series of earlier decisions, namely [1920] I.L.R. 45 Bom. 1117, (5) [1934] I.L.R. 13 Pat. 411 (F.B.), (6) [1930] I.L.R. 6 Luck. 448, (7) [1933] I.L.R. 11 Rang. 275, (8) A.I.R. 1952 T.C. 40, (9) A.I.R. 1962 M.P. 295, (10) [1935] I.L.R. 57 All. 26 (F.B.), (11) [1932] I.L.R. 59 Cal. 337, (12) [1929] I.L.R. 56 Cal. 61, (13) I.L.R. 1947 Nag. 176, (14) [1958] I.L.R. Xi (1) Punj. 407 (F.B.). The Court observed that an overwhelming number of successful appellants within the jurisdictions of those High Courts had relied on the legal position that an application for restitution is, in fact, an application for execution of a decree. The Court considered that adopting a contrary view could have a harmful effect on such appellants, even though a similar effect would not arise for appellants in High Courts that had already accepted the opposite construction. Weighing these considerations, the Court concluded that the proper interpretation of section 144 of the Code of Civil Procedure is that an application for restitution must be treated as an application for execution of a decree.

The Court then turned to the second matter, identified as Special Darkhast No. 7 of 1953, which sought recovery of costs. It was clear that this application fell under Article 182 of the Limitation Act. The appellant argued that the High Court erred in holding that the application was timely because it was filed within three years of the amended decree dated 24 August 1950. According to clause (4) of Article 182, an application for execution of a decree may be instituted within three years from the date of an amendment to the decree. The appellant, through counsel, contended that the amendment of 24 August 1950 was merely a correction of a clerical mistake and did not affect the parties’ rights, and therefore it should not be regarded as an amendment within the meaning of clause (4). The Court found it unnecessary to decide the precise scope of the word “amendment” with respect to clerical corrections, because the factual record demonstrated that the amendment was substantial and did affect the rights of the parties. The record showed that there were originally seven appellants before the High Court, and the appellate court had set aside the trial‑court decree against them. The amendment dated 24 August 1950 removed the name of the seventh appellant from the decree, thereby changing the decree’s effect from favouring seven appellants to favouring only six. This alteration clearly modified the parties’ rights, satisfying the definition of an amendment under clause (4) of Article 182. Consequently, the Court held that both the execution application and the restitution application were filed within the prescribed three‑year period and were thus timely.

The Court observed that, commencing from the relevant date, both of the pending applications were found to be clearly within the prescribed period of limitation, as established by the authority cited as Sup./65-13. In reaching this conclusion, the Court relied on the earlier finding that the limitation period had indeed begun on the date specified and that the two applications fell within the three‑year window applicable to such matters. Having determined that the timing requirement was satisfied, the Court then turned to the merits of the appeals themselves. It concluded that, because the procedural prerequisites had been met, there remained no substantive ground upon which the appeals could succeed. Accordingly, the Court held that the appeals must fail and that they should be dismissed. In addition to dismissing the appeals, the Court ordered that the parties who had brought the appeals should bear the costs of the proceedings. The final order expressly stated that, in accordance with the opinion expressed by the majority of the judges, the appeal was dismissed with costs, thereby bringing the matter to a close.