DAYAL, J. - (1.) THIS is a reference by the learned Single Judge in a writ. Two questions have been referred to this Court (1) whether the provisions of section 144 of the Code of Civil Procedure apply upon the reversal of an order (made) under Article 226 of the Constitution, and (2) Whether an application under Section 144 of the Code of Civil Procedure can be made before the Court which decided the case in the first instance or must be made before the Court to which the execution of the decree was transferred by that Court?
(2.) THE first question was referred to a larger Bench because there was a conflict between two decisions of this Court. In Brij Lal v. State of U. P., AIR 1958 All 621 a Division Bench of this Court held that the jurisdiction exercised by this Court under Article 226 of the Constitution may be a civil jurisdiction depending upon the nature of the rights decided in the writ, while in Khurjawala Buckles Manufacturing Co. v. Commr. Sales Tax U. P., 1965 All LJ 308 : (AIR 1965 All 517) another Division Bench of this Court held that the jurisdiction exercised by this Court under Art. 226 of the Constitution was neither civil nor criminal. It was merely an extraordinary jurisdiction. The main reason for taking this view in Khurjawala Buckles Manufacturing Co., case, 1965 All LJ 308 : (AIR 1965 All 517) (supra) was that this Court exercised extraordinary jurisdiction under Article 226 of the Constitution and this extraordinary jurisdiction could not be said to be either civil or criminal. For this observation reliance was placed upon a Single Judge decision of this Court in State v. Mukhtar Singh, AIR 1957 All 505 and it was also observed that there was great conflict of decisions on this point between different High Courts and that the Supreme Court had not yet pronounced upon this matter. We, however, find that the Supreme Court has, since these decisions, given a clear finding that the jurisdiction of this Court is either civil or criminal depending upon the nature of the right which is subject matter of adjudication under Article 226 of the Constitution. This was held in N. D. Mehrotra v. Vrajlal Kewaldas, 57 ITR 149 : (AIR 1965 SC 1818). It was held that since in that case the jurisdiction exercised by High Court was in respect of tax which affected the civil right of the assessee the jurisdiction was a civil jurisdiction. To quote the actual words "the proceedings before the High Court on the petition under Article 226 were "civil proceedings" within the meaning of Article 133 (1) (c) of the Constitution of India and the High Court therefore had power to issue the certificate under Article 133 (1) (c)". We are, therefore, of opinion that the proceeding under Article 226 of the Constitution which relates to the civil rights of the parties is a civil proceeding. Section 141, C.P.C. is as follows : "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction". Since the proceedings under Art. 226 of the Constitution in a case where civil rights of the parties are affected are civil proceedings and they are pending in the High Court which is a court of civil jurisdiction the section would apply. Section 141 C. P. C., therefore, is applicable to proceedings under Article 226 of the Constitution if, as stated above, it is a civil proceeding.
(3.) IN the present case the Regional Food Controller, Meerut, had passed an order compulsorily purchasing certain foodgrains in the hands of the applicant who had filed the writ petition. The writ petition was granted and about Rs. 40,000/- were directed to be paid to him on account of loss suffered by him. This money was paid. But in appeal the decision in the writ petition was reversed and now the Regional Food Controller, Meerut, has made this petition under Section 144 C.P.C. and 151 thereof for restitution. Since these matters affect the civil rights of the parties the proceedings were certainly of a civil nature and must be deemed to be civil proceedings. By virtue of Section 141 C. P. C., therefore, Section 144 of the Code would apply to these proceedings. Our answer to the first question, therefore, is "that the provisions of Section 144 C. P. C. apply upon reversal of an order made under Article 226 of the Constitution".;