GOPAL PAROI Vs. SWARNA BEWA

JUDGEMENT

(1.) This is an interesting point under Section 144, Civil P.C. It appears that the plaintiff before us purchased a certain holding in execution of a rent decree. The rent suit was a suit of 1913. The sale at which the plaintiff purchased was on 23 April 1915. Now, the tenant defendants whose holding had been sold away immediately brought a title suit in 1915 to set aside the decree and the sale and to. get possession of their land again. The first Court dismissed that suit. The lower appellate Court decreed it not only against the landlords but also against the present plaintiff-- the auction-purchaser in the case--the view taken by the said Court being that the decree had been obtained by fraud. This was in 1917. In 1921, this High Court on second appeal set aside that part of the lower appellate Court's decree which set aside the sale; in other words, this Court was of opinion that the decree may have been obtained by fraud but that the auction-purchaser not being the plain-. tiff in that suit and having no notice of the fraud was entitled to stand by the sale which had been effected under the order of the Court while that decree subsisted. Now, between the decree of the lower appellate Court and that of the High Court namely in 1918, the tenant defendants went back to the original rent Court and, in the suit of 1913, applied under Section 144 of the Code to be restored to possession of the land. There can be no doubt at all that they asked to be restored on the ground that the lower appellate Court had set aside the decree and the sale and, just because the lower appellate Court had set aside the decree and the sale, the rent Court did give to these defendants delivery of possession. It may or may not be questioned whether the rent Court was entitled to entertain that application; but it did entertain that application and its only ground for entertaining that application was that the lower appellate Court in the suit of 1915 had set aside the sale. Then, in 1925, the plaintiff the auction-purchaser, applied in the suit of 1915 (that is to say, in the tenant's suit to set aside the decree and sale) for restitution of possession under Section 144, Civil P.C. The time limit for such an application is three years and his application under Section 144 was dismissed as time barred. Thereupon, this suit was instituted for the purpose of getting a; declaration of his title and khas possession of the property.

(2.) Now the first thing that has to be observed on the face of Section 144 is that the section only applies where a decree is "varied or reversed" and apart altogether from the wording which immediately succeeds that expression "the Court of first instance shall" and so forth, it is perfectly certain that a decree is only varied or reversed by a superior Court on appeal or on revision, or it may be, on reference. But if decree is set aside either by a proceeding in the suit itself or if it is set aside by a decree in another suit altogether, or if without being set aside by such a decree, is "superseded to use the language of Turner, L. J., in a Privy Council case-- these are matters which are not within the words of the section. "Varied or reversed" has a quite definite meaning for lawyers in this country and it appears to me that the observations in the case of Tangatur Subrayudu V/s. Yerram Sethi Seshasani [1917] 40 Mad. 299 failed to take account of the correct use of language in this matter. In the present case, this condition is satisfied. In the 1915 suit, the lower appellate Court's decree directing that the decree and sale be set aside was varied or reversed by the High Court in 1921. There can be no doubt therefore that so far the case is within the section. The words of the section however are: 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 as will, so far as may be, 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.

(3.) Now it is contended by Mr. Nausher Ali in this case that these words do not apply because restitution means restoring to a party what he has lost in execution of the decree which has been varied or reversed and that, unless a party has lost something (in the strictest technical meaning) in execution of that decree, he is not within the contemplation of Section 144. No doubt, the ordinary case of restitution will be a case where something has been taken from a party in execution of a decree which has been varied or reversed, but it does not seem to me to be either necessary, reasonable or possible to confine the language of Section 144 within those precise limits. A person against whom a decree has been made for possession or to give up possession of a property may very well give up possession of the property without insisting upon any process of execution being had against him. In the present case, we have an instance in which by proceedings in the Court which tried the rent suit entirely upon the strength of the decree which set aside the sale the tenant defendants were restored to possession of their original land. I see nothing in the wording of the section, and nothing in the substance of the matter to entitle me to say that in this case the plaintiff was not a person who, when the High Court reversed that decree of the lower appellate Court, was not entitled to a benefit by way of restitution or otherwise as a result of the decree being so varied; and, in my judgment, the application of the plaintiff under Section 144 in the suit of 1915 was a competent application made in the proper manner and to a competent Court. That being so, it appears to me that the present case is hit by Sub-section 2 of Section 144, Civil P.C. and the plaintiff cannot maintain this suit for the purpose of obtaining any restitution or other relief which could have been obtained by him. I agree with the decision in the case of Chintaman Singh V/s. Chuni Sahu [1916] 1 Pat. L.J. 43 and with the decision in Ashutosh Nandi V/s. Kundal Kamini Dasi . For these reasons this appeal must be dismissed with costs. C.C. Ghose, J.