JAGAT NARAYAN, J. - (1.) THIS is a revision application by one Hari Gopal against an order of the Senior Civil Judge No. 1, Jodhpur.
(2.) THE facts which have given rise to this revision application are these. Hari Gopal instituted a suit against Sardar Mal, Mehtab Chand and Dr. Onkar Singh for recovery of certain ornaments. THE suit was decreed in his favour on 23-12-58 against Sardar Mal and Mehtab Chand, Dr. Onkar Singh having died during the pendency of the suit. Sardar Mal and Mehtab Chand preferred D. B. Civil First Appeal No. 58/59, against the decree and filed an application for stay of delivery of the ornaments to Hari Gopal. On 7-5-59 an ex parte interim order staying the delivery of the ornaments was passed and on 6. 11. 59 the following stay order was passed: "heard learned counsel for the parties. THE order for stay of delivery of possession of the ornaments is made absolute subject to the condition that within one month from the date of this order the appellant will deposit in cash a sum of Rs. 1000/- by way of security for any loss that the respondent may suffer on account of loss of interest which he may hav|e earned over the value of the ornaments in question if the ornaments had been delivered to him. If this security is deposited, the ornaments will remain in custodia legis as before and the hearing of the appeal will be expedited. In case the appeal is not disposed of within the course of a year, it would be open to the respondent to apply for fresh security. If the amount in question is not deposited within the period allowed, the respondent will be entitled to take delivery of the ornaments in question subject to giving security to the satisfaction of the Court below for restitution in case the appeal succeeds. " The above appeal was listed in the weekly causes list commencing from 25th July, 1960 and was thereafter listed in the daily cause list. It was finally heard and dismissed on 30th October, 1961. On 7-2-62 Hari Gopal filed the present application purporting to be under secs. 144 and 151 C. P. C. praying that a sum of Rs. 6200/- be awarded to him by way of compensation against Sardar Mal and Mehtab Chand, for getting the execu-tion of the decree for delivery of ornaments in his favour stayed from 7-5-59 to 30. 10. 61. The ornaments were valued at Rs. 20,000/- and interest at 12 per cent per annum was claimed on this amount as compensation. The application was opposed by Sardar Mal and Mehtab Chand. The following three issues were framed by the learned Senior Civil Judge: - (1) Whether the applicant is entitled to get Rs. 6200/- from the non-applicants by way of damages? (2) Is the application liable to be dismissed being not maintainable under secs. 144 and 151 C. P. C? (3) To what relief is the applicant entitled. On issue No. 2 he came to the finding that the present application was not maintainable under sec. 144 or sec. 151 C. P. C. and that compensation can only be claimed by a separate suit. He accordingly dismissed the application. Against the above order the present revision application has been filed. The learned counsel for the applicant has cited a number of authorities which go to support his contention that compensation can be allowed by the executing court on an application of the nature filed by him in execution proceedings. In Jawala Singh V. Sunder Singh (1) the execution of decree for possession of immovable property was stayed on the judgment-debtor giving security for mesne profits accruing from the date of the decree upto the disposal of the appeal therefrom. It was held that the order meant that such mesne profits (as would be determined by the executing court) would be realised in the execution proceedings and that no further proceedings by way of a separate suit would be necessary. In Ratansi Vs. Jaysingh (2) the execution of decree for possession was stayed on furnishing security for mesne profits accruing from the property from the date of the decree to the date of delivery of property in case the appeal failed. After the appeal was dismissed the decree-holder applied for recovery of mesne profits from the date of the decree of the trial court till the date of delivery of possession. This application was dismissed by the executing court on the ground that there was no decree with regard to mesne profits as required by Order 20, Rule 12 C. P. C. It was observed that by reason of the decree the decree-holders were entitled to obtain possession of the property and but for the fact that the Court interposed its order of stay; the decree-holders would undoubtedly have obtained possession of the property. The judgment-debtors agreed also to furnish security for the satisfaction of any claim to mesne profits between the date of the decree and the delivery of possession if the appeal failed. It was stated a long time ago by Cairns, L. C. that the Court owes a duty in such cases to the party who was placed at a disadvantage as a result of the orders of the Court. This rule was reiterated and quoted with approval by Lord Carson in Jai Berham V. Kedar Nath (3) in the following words: - "it is the duty of the Court, u/s. 144, C. P. C. to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed'. Nor indeed does this duty or jurisdiction arise merely under the said sec. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards, all parties involved. As was said by Cairns, L. C. in Rodger V. Comptoird. Escompte de Paris (4 ). "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. " In dealing with bargains which take place in Court between one side and the other, their Lordships observed that these matters are decided upon in execution proceedings and need not be left over for decision in a separate suit. Their Lordships observed (Oudh Commercial Bank Ltd. V. Thakurain Bind Basni Kuer (5) as follows: - "such bargains may take different forms and it is not possible to pre-judge the individual case. If it appears to the Court, acting under S. 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement it is a matter to be dealt with under S. 47. " In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, which by requiring all such matters to be dealt with in execution discloses a broader view of the scope and functions of an executing Court. Their Lordships are in agreement with the statement in the case of Gobardhan Das V. Dau Dayal-A. I. R. 1932 All 273 at p. 279 (FB) that 'in numerous cases a compromise between the decree-holder and the judgment-debtor entered into in the course of execution proceedings which was duly recorded, has been enforced, and they are not of opinion that the practice, which is both wide-spread and inveterate, is contrary to the Code. They are of opinion that in the present case the compromise can and should be enforced in these execution proceedings. " The Court has ample powers under sec. 144, Civil P. C. to make restitution to the party which has been deprived of the fruits of its decree by an order of the Court at the instance of the judgment-debtor. This power, as has been held on authority, is not derived merely from sec. 144 of the Code, but is inherent in the nature of things. The execution Court can, acting under sec. 151 read with sec. 47, make restitution to the party who has thus been deprived of the fruits of his decree by an order of the Court. It is not necessary in such cases that the order passed should be incorporated into, and made a part of the original decree. In the present case the respondent agreed to compensate the applicant for any loss that he might suffer on account of loss of interest which he might have earned over the value of the ornaments in question if the ornaments had been delivered to him. As such the principle underlying the above decision is fully applicable. The applicant is therefore entitled to recover compensation on the present application. I accordingly allow the revision application, set aside the order of the learned Senior Civil Judge and remand the case to his court for decision in accordance with law after recording the evidence of the parties.
(3.) THE costs of this revision shall abide the final result of the application. .;