K. N. Singh, J. :- - (1.) THIS is an application in revision u/Sec. 115 of the Code of Civil Procedure on behalf of the decree-holder for setting aside the order of the Additional District Judge allowing the application of the judgment-debtor-opposite party u/Sec. 144 of the C. P. Code and directing the trial court to restore possession of the building as well as goods to the judgment-debtor.
(2.) BRIEFLY, the facts giving rise to this revision are as follows : Nafis Ahmad, decree-holder, filed a suit for recovery of arrears of rent and ejectment from premises no. 123/76-A Noorullah Road, Allahabad, against Abdul Rahim, judgment-debtor, in the court of the Judge, Small Causes. The suit was decreed ex parte against the defendant. The decree-holder put the decree in execution and obtained possession of premises no. 123 Noorullah Road, on 2-6-1975. While delivering possession of the premises a number of goods and articles belonging to the judgment-debtor were placed in the supurdgi of Suresh Kumar. On an application made by the judgment-debtor the exparte decree was set aside by the trial court under Order IX rule 13 on 22-9-1975. Abdul Rahim made an application before the trial court on 7-11-1975 for restitution of his possession. The trial court rejected the application on the ground that it was filed beyond the period of limitation of thirty days as prescribed under Article 128 of the Limitation Act. Abdul Rahim there upon filed revision which was allowed by the Additional District Judge. The lower revisional court held that although the plaintiff's suit was in respect of premises no. 122 Noorullah Road, but in execution proceedings the judgment-debtor was wrongly dispossessed from 123 Noorullah Road. As regards the limitation, the learned Judge held that the judgment-debtor was dispossessed from premises no. 123 due to mistake of the court and since no period of limitation was provided for rectifying the wrong done by the process of the court or its agent, the defendants application for restitution could not be rejected. The learned Judge directed the trial court to restore possession of the premises in dispute to the judgment-debtor and also to restore back immovable property which was in the custody of the supurdar. The learned Judge further issued a direction to issue notice to the supurdar and also to decree-holder to show cause why they should not be prosecuted for disobedience of the court's order as they were not returning the goods of the applicant-judgment debtor. Aggrieved Nafis Ahmad decree-holder has approached this court by means of this application in revision. Learned counsel for the applicant urged that the judgment-debtor opposite party's application for restitution was barred by time as it was filed beyond thirty days from the date of his dispossession from the premises in suit. He placed reliance on Article 128 of the Limitation Act. Article 128 is in the following terms : * * * The above article prescribes period of limitation of thirty days in a case where application is made for possession by a person dispossessed of immoveable property raising a dispute relating to the right of the decree-holder or purchaser in execution of a decree. It contemplates an application by a person who may have been dispossessed in execution of the decree by auction sale as contemplated by Order XXI of the Code of Civil Procedure. If a person is dispossessed from immoveable property and if on his objection the auction sale is set aside, he is entitled to possession under order XXI. Article 128 on its face is applicable to applications for obtaining possession under the aforesaid contingency. It does not apply to restitution proceedings u/Sec. 144 of the Code of Civil Procedure. Sec.144 lays down that if a decree or order is varied, reversed in any appeal or revision or other proceedings or set aside or modified in any suit instituted by the court which passed the order shall on application of a party entitled to benefit by way of restitution or otherwise, cause such restitution to be made, so far as may be and place the parties in the position so far as may be which they would have occupied but for such decree or order and the court has jurisdiction to make any orders including the order for refund of cost, payment of interest, damages, compensation etc. There is no express entry in the schedule to the Limitation Act prescribing any period of limitation for an application u/Sec. 144. In Mahijibhai Mohanbhai Barot v. Patel Manibhat, AIR 1965 SC 1447, the question whether restitution proceedings u/Sec. 144 are proceedings in execution of a decree was considered at length. Considering the nature of the proceedings u/Sec. 144, Subba Rao, J. spoke thus : "To execute a decree is to carry into effect the terms of the decree; and "to restitute" is to restore to a party the benefit which the other party has received under a decree subsequently held to be wrong. There is no dichotomy between the execution and restitution though there can be an executable decree for restitution......". The learned Judge further observed "When a party who lost his property in execution of a decree seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution because the appellate decree enables him to obtain that relief either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree". The above observations of the Supreme Court leave no room for any doubt that when a party makes an application for restitution u/Sec. 144 of the Code, he is executing a decree to carry into effect the terms of the decree passed by the court. In execution of an ex-parte decree possession is handed over to the decree holder and if the ex-parte decree is set aside it is open to the judgment debtor to apply for the restitution as he is entitled to restoration of possession as benefit accruing to him under the order setting aside the decree. Thus in substance an application for restoration amounts to execution of orders of the court. Article 136 provides period of limitation of 12 years for the execution of a decree (other than a decree granting a mandatory injunction) or order passed by a civil court. This Article mentions not only execution of a decree but also execution of an order of a civil court. If restitution proceedings are taken under the order of a civil court, the period of limitation as prescribed under the aforesaid article would apply. In the instant case, the trial court had set aside the ex parte decree and under that order, the judgment-debtor was entitled to restitution. Therefore the period of limitation as prescribed under Article 136 would apply. The trial court committed a patent error in rejecting the restitution application on the assumption that Article 128 was applicable to an application made u/Sec. 144 of the Code of Civil Procedure. I, therefore, hold that the restitution application was made within time and it could not be rejected on the ground of limitation.
(3.) LEARNED counsel then urged that if the judgment-debtor was dispossessed from the premises 123 Noorullah Road he could not regain possession as in his application he had mentioned premises No. 122. I find no merit in the contention. There is no dispute between the parties that the judgment debtor was dispossessed from same premises which was let out to him by the decree-holder. If that be so, any clerical error in mentioning the wrong number of the premises could not be a valid ground for rejecting the judgment-debtor's application. The judgment debtor is entitled to regain possession of the property from which he was dispossessed as well as the goods which were taken into custody and placed under the custody of Suresh Kumar supurdar. There appears to be no justification for the direction as given by the lower revisional court for the prosecution of the decree-holder and the supurdar. Stage for taking action against them would arise only if they disobey the orders issued by the courts. I would therefore set aside the direction issued by the lower appellate court for the prosecution of the decree-holder and the supurdar.;