Decided on November 05,1957

KAKU SINGH Appellant
GOBIND SINGH Respondents


- (1.) THIS appeal is directed against the order of the District Judge, Patiala, by which he has ordered restoration of possession of certain lands which had been taken in execution proceedings by the decree-holders. It would be necessary to briefly state the facts.
(2.) ON the 21st of June, 1956, a decree for pre-emption of agricultural land measuring 187, bighas 5 biswas situate in village Bhore was passed in favour of kaku Singh and others, who are the appellants now. The decree-holders deposited the sum of Rs. 20,000/- which was determined to be the pre-emption money and on 21-8-1956, execution of the decree was taken out by them. On 23-8-1956, the executing Court issued warrants for possession and ordered that the warrants should be returned after compliance on 10-9-1956. On 9-9-1956, actual possession of kila Nos. 140 to 147 was delivered. On the remaining land the crops were standing and only symbolical possession wati delivered. On 10-9-1956, the decree-holders orally represented to the executing Court that actual possession of the land on which the crops were standing should also have been delivered. The case was adjourned to 16-9-1956, and an order was made that actual physical possession should be delivered to the decree-holders. The warrants having been issued on the 20th of September, 1956 they were sent to the Collector on the same day and he forwarded them to the Tehsildar for due execution. On 20-9-1956, the judgment-debtors got a stay order from the High court of erstwhile Patiala and East Punjab States Union by which execution was stayed. The order was taken dasti and presented to the District Judge, who was the executing Court, on the same day. Thereupon the executing Court ordered the warrants to be recalled but by the time the orders reached the Revenue authorities, the possession of the land had been delivered. When the orders were actually delivered to the Revenue authorities it was reported by them that possession had already been given to the decree-holders and therefore no action could be taken. It is stated that possession was actually delivered on 21-9-1956, i. e. , after the stay order had been made by the High Court. Thereupon three out of the six judgment-debtors, namely, Mst. Sarla Devi, Tara singh and Sadhu Singh filed an application before the executing Court asking for restoration of possession on the grounds that the stay order by the High Court had been passed long before the delivery of possession and consequently possession could not have been delivered after the making of the stay order and therefore the same should be restored. This application was resisted by the decree-holders but the learned District Judge by his order dated 30-10-1956, accepted the application, and ordered that possession of lands other than the land comprised in kila Nos. 140 to 147 should be restored to the judgment-debtors. The possession of kila Nos. 140 to 147, however, was not ordered to be restored as the stay order had not been made before the 10th of September 1956, when actual physical possession of those kila numbers had been given to the decree-holders.
(3.) THERE are two preliminary matters, however, which must be decided before any decision is given on the merits of the case. One of the questions is whether the present appeal is competent under Section 47 of the Code of Civil Procedure. The order under appeal directed restitution of possession of certain land as stated before. This order was clearly not made under the provisions of Section 144 of the code inasmuch as no decree had been varied or reversed and restitution had been ordered only because a stay order had been made by the High Court. Such an order could only be made in exercise of the inherent powers under section 151 and if that bo so, only a revision would be competent and not an appeal. It is true that there is authority tor the view that where an execution sale is set aside under Order XXI Rule 92 and restitution is to be allowed, Section 144 has no application, but such restitution can be granted in exercise of the Court's inherent power, and where the Court acting under Section 151 exercises the same jurisdiction which Section 144 gives it, the order of restitution made under Section 151 is appealable; Vide Sasikanta Acharjee v. Jalil Baksh Munshi, AIR 1931 Cal 779 (2 ). The Calcutta case, however, was decided more or less on certain grounds peculiar to that case and the practice and the view followed in earlier decisions of that Court were leargely followed. It was recognised in that case that in the definition of decree as given in Section 2 (2), Section 47 had been kept separate from Section 144, but the fact that in an artificial definition intended only for purposes ot laying down provisions for appeals, those sections have been enumerated separately should not be taken to mean that questions which arose under Section 144 might not be questions falling within Section 47. Applications for restitution which were not by way of execution of the decree varying or reversing an original decree but were independent applications in connection with execution proceedings were considered to be such as gave rise to matters under Section 47 of the Code. With all respect it is somewhat difficult to accept the view adopted by the Calcutta high Court in the case referred to above. It seems to be widely accepted now that such proceedings or orders as are made under Section 151 can only be made if they do not fall within any of the other provisions of the Code, and if an order is properly made under Section 151 it is not anpealable and can be challenged only by petition for revision. In Mam Chand v. Ali Mohammed, AIR 1934 Lah 1023, abdul Rashid J. , held that apart from the provisions of Section 144 the Court had ample power under Section 151 to order restitution. He did not accept the rule laid down in the Calcutta case Gnanada Sundari v. Chandra Kumar De, AIR 1927 Cal 285, that an order made under Section 151 in exercise by analogy of jurisdiction under Section 144 was appealable. He treated the memorandum of appeal as a petition for revision in that case. To the same effect are the views of the High Court of Patna and the Chief Court of Oudh: sukhdeo Dass v. Rito Singh AIR 1917 Pat 495; Brij Mohan Singh v. Rameshar singh, AIR 1939 Oudh 273. I, therefore, consider that an appeal would not lie in the present case, but I would treat the memorandum of appeal as a petition for revision as has been unwed for by the learned counsel for the decree-holders.;

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