11 December 1964
Supreme Court


Case number: Appeal (civil) 777 of 1964






DATE OF JUDGMENT: 11/12/1964


CITATION:  1965 AIR 1477            1965 SCR  (3) 436  CITATOR INFO :  R          1966 SC1194  (3)

ACT: Code  of Civil Procedure (Act 5 of 1908) s.  144-Application underif execution application. Limitation Act (9 of 1908), Arts. 181 and 182-Scope of.

HEADNOTE: The   appellant  filed  a  suit  for  recovery  of   certain properties  from the respondents.  The suit was  decreed  by the trial court The respondents appealed to the High  Court, but  pending the appeal, the appellant, in execution of  the decree  of the trial court, obtained possession of the  suit properties  and recovered the costs awarded.  Only July  13, 1949,  the  High  Court set aside the decree  of  the  trial court,  and  on August 24, 1950, the  appellate  decree  was amended  by deleting the name of one of  the  decree-holders from the decree.  The respondents filed two applications one on February 11, 1953 for costs and the other on February 13, 1953 for restitution of the properties and costs paid, under s.  144 of the Civil Procedure Code, 1908.  The trial  court ordered  execution to proceed and on appeal the  High  Court confirmed the order.  In the appeal to the Supreme Court, it was  contended  that: (i) the application  for  recovery  of costs  was  barred  by  limitation under  art.  182  of  the Limitation  Act, 1908, as it was filed beyond 3  years  from the  date of the appellate decree and (ii)  the  application for restitution was not an application for execution and was therefore governed by art. 181 of the Limitation Act; and as the  period  of limitation of 3 years  under  that  article, starts  from  the date when the right to apply  accrues  the application for restitution was also barred by limitation. HELD (by Full Court): (i) The execution application for  the recovery of costs was within time. [439 E; 455 H] By the amendment of August 24, 1950, the name of one of  the decree-holders was struck out from the decree and the result was,  to  that,  extent,  the rights  of  the  parties  were modified  by  the amended decree. it was therefore.  a  case where the decree has been amended within the meaning of art.



132(4)  of  the  Limitation Act,  and  the  application  for execution could be filed within 3 years from the date of the amendment. [455 G] (ii) (Per Subba Rao, Raghubar Dayal, Rajagopal Ayyangar  and Mudholkar JJ.) : On a fair construction of the provisions of s.  144 of the Code, an application for restitution must  be held  to be one for execution of a decree, and  having  been filed within 3 years from the date of the amended decree was within time. [455 B, H] Having  regard  to the history of the section, there  is  no reason why such an application should not be treated as  one for  execution of the appellate decree.  The object  of  the section  is  to  make the scope  of  restitution  clear  and unambiguous.   It  does  not say  that  an  application  for restitution, which till the Code of 1908 was enacted was  an application for execution, should be treated as an  original petition.  Whether an application is one for execution of  a decree or in an original application depends upon the nature of the application and the relief asked for.  When a  party, who  lost  his property in execution of a decree,  seeks  to recover it back by 437 reason  of  the appellate decree in his favour,  he  is  not initiating  any  original proceeding but is  concerned  only with the working out of the appellate decree in his  favour. [450 E-H; 451 A] it  would  be inconsistent to hold that an  application  for restitution would be an original petition, if the  appellate decree did not give a direction for restitution, and that it would  be  an  execution application if  it  did.   Such  an inconsistency   could   be  avoided  if  a   direction   for restitution  were implied in every appellate decree  setting aside or modifying the decree of the lower court. [451 C-E] The  existence  of  s.  47 in the Code  would  make  s.  144 redundant.  The latter section was enacted to prescribe  the procedure, define the powers of the court and expressly  bar the  maintainability  of  a  suit in  respect  of  a  relief obtainable under it. [451 E, G] The   fact  that  the  section  has  been  placed   in   the "Miscellaneous"   part  of  the  Code  for  convenience   of arrangement,  cannot affect the question if in  reality  the application  for restitution is one for execution :  at  the most  it  is only one of the circumstances relevant  to  the enquiry and it is not decisive. [452 D-E] Merely  because,  under s. 144, the application  has  to  be filed  in "the court of first instance" and under s.  38,  a decree  may be executed both by "the Court which passed  if’ or  by  "the court to which it is sent  for  execution."  an application  under  s.  144, does not ease  to  be  one  for execution.   For  under s. 37, the expression  "Court  which passed  a  decree" includes the "Court of  first  instance", when  the  decree  to be executed has  been  passed  in  the exercise of appellate jurisdiction. [452 E-G] If an execution application to which s. 47 applies does  not cease  to  be  an execution application  by  reason  of  the section being included in the definition of a "decree" under a.  2(2),  an  execution application  under  s.  144  cannot likewise  cease  to  be one for the  reason  that  the  said section  is included in the definition of decree.   The  two sections  were  included only for the purpose  of  giving  a right of appeal. [453 C-D] To  construe an application for restitution as not  one  for execution  would lead to anomalies specially under ss. 6,  7 And  15 of the Lemitation Act.  The existence  of  anomalies may have no relevance when a provision of a statute is clear



and unambiguous, but will certainly have a bearing when  the section  is  ambiguous.   Further, in  a  procedural  matter pertaining  to  execution  when  a  section  yields  to  two conflicting   constructions,  the  court  should   adopt   a construction  which  maintains  rather  their  disturbs  the equilibrium in the field of execution. [453 H; 454 A, F] Per Sarkar J. (dissenting) : The application under s. 144 is not one in execution and therefore would not be governed  by art.  182  of the Limitation Act but by  art.  181.   Since, under art. 181 time starts to Tun from the date the right to apply  accrues and the period provided is three  years,  the application for restitution would be barred. [442 D-F] Apart from the fact that the application is not described as one in execution the provision in the section for the making of  an order for the purpose of effecting restitution  would lead  to the conclusion that it is this order that is to  be executed  for  obtaining  restitution;  and  therefore   the earlier  application resulting in such order, could  not  be one for execution. [440 D-E] if  the application under s. 144 is one for execution,  then the pro@ion in the section that no suit shall be  instituted for the Purpose of obtaining restitution, and the  inclusion of  the determination of a question under s. 144 within  the definition of decree in s. 2(2) would be unnecessary because of  s.  47.   The latter  ion  which  relates  to  questions arising in 438 execution  bars  a suit to obtain the same relief,  and  the determination of any question under that section is included within the definition of decree. [440 F-H] Further,  under  a. 144, the application has to be  made  to "the Court of first instance" and not to a transferee court, whereas, under ss. 38 and 39 and OXXI, r. 10, the holder  of a decree desiring to execute it shall apply to the court  to which the decree has been sent for execution. [441 A-C] While  the  s. 583 of the Code of 1882,  expressly  provided that restitution would be by way of execution, s. 144 of the Code  of  1908, deliberately omits reference  to  execution. This  departure in the terminology used, would tend  to  the view  that it was intended that the procedure under the  new section would not be by way of execution. [441 F-G] If  the language of the section by itself clearly  indicates that  the  procedure is not to be by way  of  execution,  it would  not  be  legitimate to interpret  the  section  in  a different  way  because of the deprivation of  the  benefits under ss. 6, 7 and 15 of the Limitation Act. [442 B] It  cannot be said that the right to apply  for  restitution accrued when the appellate decree was amended, for under  s. 9 of the Limitation Act, case began to run from the date  of the appellate decree, when the right to apply first accrued. [442 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: CIVIL Appeals Nos. 777 and 778 of 1964. Appeals  by special leave from the judgment and order  dated March  5,  1964 of the Gujarat High Court in  First  appeals Nos. 111 and 112 of 1960. W.   S. Barlingay and A. G. Ratitaparkhi, for the  appellant (in both the appeals). I. N. Shroff, for the respondents 2 and 3. Sarkar  J. delivered a dissenting Opinion.  The Judgment  of Subba  Rao, Raghubar Dayal, Ayyangar and Mudholkar  JJ.  was



delivered by Subba Rao J. Sarkar J. These appeals arise from two miscellaneous  appli- cations  made to the trial Court which was the Court of  the Civil  Judge, Nadiad in the State of Gujarat.  One of  these applications  was for execution of orders for costs  awarded and  the  other  was  under s. 144  of  the  Code  of  Civil Procedure  for  restitution of money and property  taken  in execution of a decree reversed in appeal.  ’Me appellant  is the  successor-in-interest of the plaintiff in the suit  out of  the  proceedings of which these appeals  arise  and  the respondents were the defendants there. The  appellant’s predecessor-in-interest had filed the  suit for  possession of land against the respondents and  another person,  now dead.  The suit was decreed with costs  by  the trial  Court  on November 30, 1945 but that decree  was  set aside on July 13, 1949 439 on  appeal  by the defendants to the High Court  of  Bombay. While the appeal was pending the appellant’s predecessor-in- interest  had in execution of the decree of the trial  Court obtained  possession  of  the land and  realised  the  costs awarded.    Also   pending  the   appeal   the   appellant’s predecessor-in-interest  having  died,  the  appellant   was substituted  in his place.  After the appellate  decree  had been drawn up, it was amended on August 24, 1950 by deleting the  name of one of the appellants mentioned therein,  being one  of  the defendants to the suit, on the  ground  of  his death.   The appellant got leave from this Court under  Art. 136 of the Constitution to appeal from the appellate  decree but  such  leave  was revoked on November 24,  1952  as  the appellant had failed to carry out the condition on which  it had been granted.  Thereafter on February 1 1, 1 9 5 3,  the respondents  filed  in the trial Court the  application  for execution  for recovering the costs awarded to them  in  the proceedings  up  to the date of the revocation of  leave  by this  Court and out of this application one of  the  appeals has  arisen.   On February 13, 1953, they  filed  the  other application under s. 144 of the Code for restitution of  the land taken and the costs realised from them in execution  of the  decree  of the trial Court and out of  this  the  other appeal has arisen.  The only question argued in each  appeal is whether it is barred by limitation. As  regards the application for execution, I agree  with  my learned brother Subba Rao that it is not barred by time  and the appeal arising from it, that is, appeal No. 777 of  1964 should be dismissed.  On this matter I, have nothing to  add to what my learned brother has stated in his judgment. On  the  other  application,  namely,  the  application  for restitution  under  s.  144 of the Code, I have  come  to  a conclusion  different from that of my learned brother.   The question  here also, as I have already said, is whether  the application had been made beyond the time specified and  was barred.   The  appellant,  who was  the  defendant  to  that application, contended that an application under s. 144  was not  in execution and would be governed by Art. 181  of  the Limitation  Act  which  covers  applications  not  specially provided for in the Schedule to that Act and not by Art. 182 relating  to  execution.   The respondents  who  wanted  the restitution, contended on the other hand that the case  came under  Art. 182 as the application for it was really one  in execution.  Subject to certain questions which I will  later discuss, it is not in dispute that if Art. 181 applied, then the application would be barred while it would not be so  if the case was governed by Art. 182. Supp./65-12



440 The  question,  therefore,  in this  appeal  is  whether  an application under s. 144 is an application in execution.  On that  question there has been a great divergence of  opinion in  the  High Courts.  It would not be profitable  to  refer specifically  to  the reasons given in  these  judgments  in support of the views respectively adopted, for these reasons will, in substance, all be discussed later.  In my view,  an application  under  s. 144 is not one for  execution  and  I proceed now to state my reasons for that view. I   suppose  our  first  task  in  deciding  what  kind   of application  is  contemplated in s. 144 is to  look  at  its terms.   On doing so, I find that no reference to  execution is  made in it.  It is not contained in any chapter  dealing with execution.  It says that when a party becomes  entitled to  restitution  as  a result of a decree  being  varied  or reversed,  the  Court  of  first  instance  shall,  on   his application,  cause  restitution  to be made  and  for  this purpose  the  Court may the word "may"  here  clearly  means "shalt"  make any orders that may be necessary.  Apart  from the  fact  that the application is not described as  one  in execution, the provision for the making of an order for  the purpose   of  effecting  restitution  would  lead   to   the ,conclusion  that it is this order which is to  be  executed for obtaining  restitution.  The section obviously could not contemplate  two applications for execution, and  therefore, the earlier application resulting in the order mentioned  in the section could not be one for execution.  It seems to  me impossible,  looking at the terms of the section alone  -and without  more, we have no right to look at anything else  to say  that  the  application contemplated in  it  is  one  in execution. There  are  other reasons indicating  that  the  application contemplated by the section is not one for execution.   Thus if the application was in execution, then under s. 47 of the Code  a suit to obtain the same relief would be barred.   It would then have been unnecessary to provide by sub-s. (2) of s.  144 that no suit shall be instituted for the purpose  of obtaining  restitution.  Again turning to the definition  of decree  in S. 2, sub-sec. (2), I find that it  includes  the determination  of a question within s. 144.  This  provision would  be  wholly unnecessary if the determination  of  that question  was in execution proceedings for then  the  matter would  be  brought within the definition of decree  by  that part  of  it which included in it the determination  of  any question  within  s. 47 which section relates  to  questions arising in execution. Lastly, while s. 144 provides that the application under  it is to be made to "the Court of first instance", s. 38  which occurs in 441 a  part  of the Code dealing with execution, states  that  a decree may be executed either by "the Court which passed  it or by the Court to which it is sent for execution".  Section 39  provides  for a transfer of a decree  for  execution  to another Court and by virtue of Or. 21, r, 10, the holder  of a  decree  desiring to execute it shall, if the  decree  has been  sent to another Court, apply to that Court.  Under  s. 144 however the application had  to be made to "the Court of first instance".  The section does not permit an application to be made to a transferee Court.  This again will  indicate that  it was riot intended that an application under s.  144 will  be  an  application  for  execution.   No  doubt,  the expression  "Court of first Instance" has to be  interpreted in  a  general sense and would include, where the  Court  of



first  instance has ceased to exist, a court which then  has jurisdiction over the territory in which the abolished Court functioned.  Such a view was taken in Panchapakesa Aiyar  v. Natesa Pathar(l).  This however is a different matter. It was said on behalf of the respondents that s. 144 of  the Code   of  1908  was  intended  to  replace  the   analogous provisions contained in s. 583 of the preceding Code of 1882 and  was in effect a re-enactment of the  earlier  provision and, therefore, in construing s. 144 it has to be considered in  what  way  the earlier provision, namely,  s.  583,  was defective  which  defects  the  new  provision  intended  to rectify.   It  does not seem to me that even  this  approach assists   the  contention  that  s.  144   contemplates   an application  in execution. Section 583 expressly  said  that the  restitution was to be obtained by way of an  execution. While it is true that on various questions arising under  s. 583  difficulty had been felt and divergent views  expressed in  the  High Courts, there was however no doubt  ever  felt that the earlier section had provided for a procedure by way of  execution  to obtain restitution.  The  earlier  section cannot,  therefore,  lend any support to the view  that  the application  under the new section has to be  in  execution. Indeed the old section leads to the contrary view for  while it  expressly provided that restitution would be by  way  of execution, the present section deliberately omits  reference to execution.  This departure in the terminology used, would tend  to  the view that it was intended that  the  procedure under  the  new section would not be by  way  of  execution. With the difficulties actually felt under s. 583, we are not concerned  in the discussion of the present case: they  give no assistance in the solution of the question now before us. (1) 51 M.L.J. 161. 442 It  was  then  said that if the  application  for  obtaining restitution  under s. 144 was not in execution, then  minors and  others  would  be  deprived  of  the  benefit  of   the provisions  in  ss. 6 and 7 of the Limitation  Act  and  the benefit of s. 15 of that Act would also not be available  in respect  of such an application.  It the language of s.  144 by itself clearly indicates that the procedure is not to  be by  way  of execution, as I think it does, it would  not  be legitimate  to  interpret that section in  a  different  way because  of  the  deprivation  of  the  benefits  under  the provisions of another Act.  Furthermore, there will be  many applications  coming  under Art. 181 of the  Limitation  Act other  than one under s. 144 of the Code where the  benefits of these sections of the Limitation Act would not be  avail- able.   The provisions in the Code of Civil Procedure  which give rise to the other kinds of applications covered by Art. 181  of  the  Limitation  Act  cannot  all  be  changed  for conferring  the  benefits of ss. 6, 7 and 15  of  that  Act. Clearly  the intention of ss. 6, 7 and 15 of the  Limitation Act was that their benefit would be available only in  cases coming within their terms.  I am, therefore, unable to agree that a consideration of these sections of the Limitation Act is relevant for the present enquiry.  For all these  reasons I am of opinion that the application contemplated in s.  144 of  the Code is not one in execution and, therefore,  it  is not governed by Art. 182 of the Limitation Act dealing  with execution  but by Art. 181. for it is not disputed  that  if Art. 182 did not apply, Art. 181 would.  Now under Art.  181 the  time  starts to run from the date the  right  to  apply accrues  and  the period provided is three  years.   In  the present case if the right to apply accrued from the date  of the  appellate  decree  which  gave rise  to  the  right  of



restitution,  then the application for restitution would  be barred for the appellate decree was passed on July 13,  1949 and the application had been filed on February 13, 1953. But, as I have already said, after the appellate decree  had been drawn up it was amended on August 24, 1950 by  deleting the name of one of the appellants who had died.  It was said for the respondents that the right to apply even if Art. 181 applied, must be said to have accrued when the amendment was made,  for  before then the present  respondents  could  not apply,  and  if  time  was  computed  from  that  date   the application  was  not barred.  This  contention  however  is without foundation for under s. 9 of the Limitation Act once the time starts running, it does not stop to do so and there is  no dispute that the time began to run from the  date  of the appellate decree when the right to apply first accrued. 443 It was lastly contended for the respondents that time should start  running  from the date when this  Court  revoked  the leave  to  appeal  granted  under Art.  136.   There  is  no authority to support this contention. In the result I would  allow appeal No. 778 of 1964 that has arisen  from  Miscellaneous application No. 16 of  1953  and dismiss the other appeal. Subba  Rao, J. These appeals by  special leave raise,  inter alia, the question whether Art. 181 of the Limitation Act or Art.  182 thereof applies to an application under s. 144  of the Code of Civil Procedure, 1908. The  facts may be briefly stated.  Mohanbhai  filed  Special Jurisdiction  Suit No. 28 of 1943 in the Court of the  Civil Judge,  Senior  Division,  Nadiad,  for  possession  of  the properties  described in the Schedule annexed to the  plaint from respondents Nos.  1 to 5 and others.  Respondents 1  to 5  claimed  to be in possession of the  said  properties  as trustees  under  a  will  executed  by  Mohanbhai’s  brother Chhabaji; the other respondents are alleged to be the sevaks appointed by the respondents to administer some of the trust properties.   On November 30, 1945, the learned Civil  Judge decreed the suit. 3 of the trustees and the sevaks preferred an  appeal, being Appeal No. 317 of 1946, to the High  Court of  Bombay.   On  November  8,  1946,  pending  the  appeal, Mohanbhai  obtained  possession of the  suit  properties  in execution  of  the  decree  of  the  trial  Court;  he  also recovered  a  sum of Rs. 1,290-3-0 from the  trustees  being costs  awarded  to  him by the  Trial  Court.   Pending  the appeal,  Mohanbhai died and his son, the present  appellant, was  brought on record in his place.  On July 13, 1949,  the High  Court  set  aside the decree of the  Trial  Court  and dismissed  the suit with costs.  After the appellate  decree was drawn up, an application was filed by the decree-holders for  deleting the name of appellant No. 7 in the High  Court on  the  ground  of  his death.  On  August  24,  1950,  the application  was  granted and the name of  appellant  No.  7 therein  was  deleted.   As the  application  filed  by  the appellant  in the High Court for a certificate to prefer  an appeal  to this Court was dismissed on January 9,  1951,  he filed  an  application in this Court for  special  leave  to appeal.   On  April 16, 1952, special leave  to  appeal  was granted to the appellant.  But as he did not comply with the conditions imposed on him while granting the special  leave, this  Court  on  November 24, 1952,  rescinded  the  special leave.    Thereafter,   the  respondents  herein   filed   2 applications in the Trial 444 Court,  one  was  Special Darkhast No. 7 of  1953  filed  on february  11,  1953, for recovering costs of the  suit,  the



appeal, and the miscellaneous applications, awarded to  them against  the  appellant,  and the  other  was  Miscellaneous Application No. 16 of 1953 filed on February 13, 1953, under S.  144 of the Code of Civil Procedure ’for the  restitution of the estate of Chhabaji which had come into the possession of  the appellant and also for the recovery of a sum of  Rs. 1,290-3-0  paid by the trustees to Mohanbai in execution  of the decree of the Trial Court.  The appellant contended that both  the  applications  were  barred  by  limitation.   The learned  Civil  Judge held that cl. (2) of Art. 182  of  the Limitation  Act  applied to the facts of the  case  and  the period of limitation would run from November 24, 1952,  when this  Court revoked the order granting special  leave,  and, therefore, both the applications having been filed within  3 years from that date, they were in time.  Alternatively.  he held that as the decree was amended on August 24, 1950, when the name of the deceased trustee was deleted, the period  of limitation  would run from that date under cl. (4)  of  Art. 182   of  the  Limitation  Act  and,  therefore,   the   two applications  would  be in time.  In that  view,  the  Trial Court   ordered  execution  to  proceed  in  the  said   two applications.  The appellant preferred an appeal to the High Court against the said order of the Trial Court.  Before the High Court learned counsel for the appellant contended  that in regard to the application for restitution Art. 181 of the Limitation  Act would apply and, therefore the  said  appli- cation not having been filed within 3 years of the date-- of the   decree,  was  barred  thereunder.   Alternatively   he contended  that  even  if Art. 182  of  the  Limitation  Act applied, both the applications would be barred by limitation under  the said Article.  The High Court held that both  the applications were governed by Art. 182 of the Limitation Act and that the period of limitation would commence to run from the  date  the said decree was amended on August  24,  1950, when the name of the deceased trustee was deleted and  that, as the said applications were filed within 3 years from  the said  date,  they were within time.  In that view,  it  con- firmed the ordeer of the Trial Court.  Hence the appeals. Dr.  Barlingay,  learned counsel for the  appellant,  raised ’before us the following two points : (1) An application for restitution  under s. 144 of the Code of Civil Procedure  is not  an  application  for the execution  of  a  decree  and, therefore, the said application is not governed by Art.  182 of  the  Limitation  Act, which provides  for  a  period  of limitation in the case of execution of decrees, but by  Art. 181 thereof, which is a residuary article of limitation. 445 (2)As  under  Art. 181 of the Limitation Act the  period  of limitation  of  3 years starts from the date  the  right  to apply  accrues,  the said application  for  restitution  was barred  by limitation as the respondents right to apply  for restitution accrued to them when the appeal filed by them in the  High  Court was allowed on July 13, 1949.   He  further argued  that  the alleged amendment dated August  24,  1950, would  not help the respondents, as the 7th respondent  (7th appellant in the High Court) died after the said appeal  was disposed  of, that is after the respondents’ right to  apply accrued;  and  that  the second  application  viz.,  Special Darkhast  No.  7  of 1953, for recovery of  costs  was  also barred by limitation under Art. 182 of the limitation Act as it  was filed beyond 3 vears from the date of the  appellate decree  and  that the amendment dated August  24,  1950,  on which  the respondents relied to save the bar, was  only  an amendment  of a clerical mistake and, therefore, was not  an amendment   within  the  meaning  of  Art.  182(4)  of   the



Limitation Act. Mr.  1. N. Shroff. learned counsel for the  respondents,  on the  other  hand, contended that both the  applications  are governed by Art. 182 of the Limitation Act and that they are saved  both  under cl. (2) and cl. (4) of Art. 182  of  the, Limitation  Act.  Alternatively he argued that even if  Art. 181  of  the Limitation Act applied to the  application  for restitution,  it  would be within time, as  the  respondents right  to apply accrued to them either on the date when  the Supreme  Court  revoked  the special leave  granted  to  the appellant,  viz., November 24, 1952, or at any rate  on  the date when the decree was amended, i.e., August 24, 1950. We shall first take up the question of Iimitation in  regard to  an application for restitution.  At the outset it  would be convenient to read the relevant provisions of the Code of Civil Procedure and of the Limitation Act. Section 144 of the Code of Civil Procedure               (1 ) Where and in so far as a decree is varied               or  reversed,  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;  and               for  this  purpose,  the Court  may  make  any               orders,  including  orders for the  refund  of               costs   and  for  the  payment  of   interest,               damages, compensation and mesne profits,               446               which  are  properly  consequential  on   such               variation or reversal.               (2)   No  suit  shall be  instituted  for  the               purpose of obtaining any restitution or  other               relief which could be obtained by  application               under sub-section (1).           The First Schedule to the Limitation Act                              Period          Time from which Description of application    of             period begins                             Limitation       to run Art. 181. Applications for                 When the right to which no  period of                        apply accrues. limitation is  provided     Three elsewhere in this schedule  years or by section  48 of the Code of Civil Procedure, 1908. Art. 182.For the execution  Three years; 1. The date of the of a decree or order of     or where a   decree or order, or any  Civil Court not        certified provided for by article     by copy of   2. Where there has 183 or by section 48 of     the decree or   been an appeal, the Code  Civil Procedure,  orders has   the date of the 1908.                       been regis-  final decree                             tered, six   or order of the,                             years.       Appellate Court                                          or the withdrawal                                          of the appeal, or                                         3. Where there has                                         been a review of                                         Judgment,date of                                         the decision passed                                         on the review, or                                         4. Where the decree



                                       has been ameended,                                         the date of                                         ameendment, or Under  the  said  provisions if an application  is  one  for execution  of  a  decree,  Art 182  of  the  Limitation  Act applies; but if it is not an application for execution of  a decree, but an application for which no period of limitation is  prescribed  elsewhere, Art. 181 of  the  Limitation  Act applies.   The  short but difficult question is  whether  an application  for  restitution under s. 144 of  the  Code  of Civil Procedure is an application for execution of a decree. Section  144 of the Code of Civil Procedure does not say  in express terms that an application for restitution is not  an application for execution of a decree; nor does it say  that it  is one for execution.  So its nature can be  ascertained only by construing the said statutory provision.  To execute a  decree is to carry into effect the terms of  the  decree; and "to restitute" is to restore to a 447 party the benefit which the other party has received under a decree subsequently held to be wrong.  There is no dichotomy between  execution  and  restitution, for there  can  be  an executable  decree  for  restitution.   There  is  a   sharp cleavage  of  opinion among the various High Courts  on  the question  whether an application for restitution is one  for execution  of  a decree or not.  This shows  that  different views  can be taken on a fair construction of s. 144 of  the Code  of  Civil  Procedure.   In such a  case  the  rule  of construction of a statute applicable is stated by Lord Coke, which  is adopted by Maxwell, and it is found in Maxwell  on Interpretation of Statutes, 11th Edn. at p. 18 :               "To  arrive at the real meaning, it is  always               necessary  to get an exact conception  of  the               aim,  scope  and object of the whole  Act;  to               consider, according to Lord Coke :  1.    What               was  the  law before the Act  was  passed;  2.               Whatwas  the mischief or defect for which  the               law   had   not  provided;  3.   What   remedy               Parliament has appointed; and 4. The reason of               the remedy."      Let us therefore, approach the problem having regard to the said rule of construction. In  Halsbury’s  Laws of England, 2nd Edn.,  Vol.  14,  p.38, para. 69, the English law on the subject is stated thus:                     "Where a wrongful or irregular execution               has  been  set aside, or where a  judgment  or               order   has  been  reversed  after   execution               thereon  has taken place, restitution will  be               made  to  the  successful  party.  The   order               setting aside   the execution or reversing the               judgment or order should  provide  for   this;               and if it does, execution may issue upon  it               in the ordinary course. If the order does  not               so  provide, another order may be made,  or  a               writ called a   writ of restitution be issued,               commanding the judgment   creditor to  restore               the  property  or  pay over  the  proceeds  of               sale." The  said passage indicates that under the English  law  the appellate  order  reversing  the  original  one  may  itself contain  a direction for restitution or a court may issue  a separate  order  or a writ of restitution.  In the  Code  of Civil  Procedure, 1859, there was no express  provision  for restitution.   But the scope of the doctrine of  restitution was  considered by the Judicial Committee in  Shama  Purshad



Roy  Chowdery  v. Hurro Purshad Roy Chowdery(l)  wherein  it stated the principle thus (1)  [1865] 10 M I.A.203,211. 448               "........  this  rule of law rests,  as  their               Lordship apprehend, upon this ground, that the               original  decree or judgment must be taken  to               be  subsisting  and valid until  it  has  been               reversed  or superseded by some ulterior  pro-               ceeding.   If  it  has  been  so  reversed  or               superseded, the money recovered under it ought               certainly  to  be  refunded,  and,  as   their               Lordships  conceive, is recoverable either  by               summary  process, or by a new suit or  action.               The  true question, therefore, in  such  cases               is, wether the decree or judgment under  which               the  money ",as originally recovered has  been               reversed or superseded; and applying this test               to  the present case, their Lordships are  oil               opinion,  that  the decrees obtained  by  Tara               Pushad against Doogra Purshad were  superseded               by  the  Order  of  Her  Majesty  in   Council               pronounced  in the year 1849.  It was  plainly               intended by that Order that all the rights and               liabilities  of  the parties should  be  dealt               with   under   it,   and  it   would   be   in               contravention  of  the  Order  to  permit  the               decrees  obtained by Tara Purshad pending  the               appeal on which it was made to interfere  with               this purpose." Though this passage relates to supersession of a decree  not in an appeal against that decree but by the Privy Council in a collateral proceeding the Judicial Committee made it clear that  the rights and liabilities of parties should be  dealt with  only under the decree superseding the earlier  decree; and   it  further  restated  the  Englisg   principle   that restitution could be made either by a summary process or  by a  new suit or action.  The Code of Civil  Procedure,  1882, for  the  first  time,  introduced  s.  583  providing   for restitution.  That section read :               "When a party entitled to any benefit, by  way               of  restitution or otherwise, under  a  decree               passed in an appeal under this chapter desires               to  obtain  execution of the  same,  he  shall               apply  to  the Court which passed  the  decree               against  which the appeal was  preferred;  and               such Court shall proceed to execute the decree               passed  in  appeal,  according  to  the  rules               hereinbefore  prescribed for the execution  of               decrees in suits." Under this section any party entitled to any benefit under a decree passed in an appeal could file an application in  the Court  which passed the decree against which the appeal  was preferred for the purpose of executing the appellate decree. The crucial words of 449 the section were "benefit by way of restitution or otherwise under  a  decree".  Did those words mean that  an  appellate decree should expressly contain a direction for  restoration of any property taken by the respondent in execution of  the decree  of the first Court, or did they include any  benefit to   which  the  decree-holder  would  be  entitled   as   a consequence  of  that decree of reversal It  was  held  that under that section a party would be entitled to restitution, though  restitution  was not expressly provided for  by  the



decree  see Balvantrav v. Sadrudin(1); and Rohini  Singh  v. Hodding(2)  A bare perusal of the section indicates that  an application  for restitution under the said section  was  an application for execution of an appellate decree.  The Privy Council  in  Prag  Narain  Kamakhia  Singh(3)  held  that  a separate  suit would not lie and the relief provided by  the said section could be obtained only under s. 583 and s.  244 of the Code of Civil Procedure in execution proceedings.  An application  made  to obtain restitution under a  decree  in accordance with s. 583 of the Code of Civil Procedure, 1982, being a proceeding in execution of that decree, it was  held by all the High Courts, except one, that proceedings by  way of  restitution  were proceedings for execution  within  the meaning  of  Art.  179 of the Limitation  Act,  1877  :  see Venkayya  v. Raghavacharlu(4), Nand Ram v. Sita Ram(5),  and Jeddi  Subraya  Venkatesh  Shanboah  v.  Ramrao   Ramchandra Murdeshvar(6).   There  was  so  conflict  on  the  question whether mesne profit, for the period of dispossession of the party could be recovered only under the said section or by a regular suit. The  legal  position  under  s. 583 of  the  Code  of  Civil Procedure, 1882, may be stated thus : The benefit accrued to a  party under an appellate decree could be realized by  him by executing the said decree through the Court which  passed the  decree  against which the appeal  was  preferred.   The appellate  Court which set aside or modified the  decree  of the  first  Court  could  give  a  direction  providing  for restitution.  Even if it did not expressly do so, it  should certainly  be implied as the appellate Court could not  have intended otherwise.  The setting aside of the decree  itself raised the necessary implication that the parties should  be restored  to  their original position.  Be that as  it  may, Courts understood the provision in that light and held  that such  a  decree  was executable as if it  contained  such  a direction.  Such an application was governed by Art. 179  of the Limitation Act, 1887, (1)  [1889] I.L.R. 13 Bom. 485. (2)  [1894] I.L.R. 21 Cal. 34). (3)  [1939] I.L.R. 31 All. 551 (P.C). (4)  [1897] I.L.R. 2,3 Mad. 448. (5)  [1886] I.L.R. 8 All. 545. (6)  [1898] I.L.R. 22 Bom. 998. 450 corresponding  to Art. 182 of the present Act.  No suit  lay for the relief of restitution in respect of such a  benefit, the same being held by the Privy Council to be barred by  s. 244  of  the Code of Civil Procedure, corresponding  to  the present  S.  47 of the Code.  But the terms of  the  section were  only confined to a party entitled to a benefit by  way of  restitution  or otherwise under a decree  passed  in  an appeal and not under any other proceeding. With this background the Legislature in passing the Code  of Civil Procedure, 1908, introduced s. 144 therein.  The  said section  is  more comprehensive than s. 583 of the  Code  of 1882.   Section 144 of the present Code does not create  any right  of restitution.  As stated by the Judicial  Committee in Jai Berham v.    Kedar Nath Marwari(l),               "It  is the duty of the Court under s. 144  of               the Civil Procedure Code 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 section.      It      is               inherent  in the general jurisdiction  of  the



             Court to  act rightly and fairly according  to               the circumstances    towards    all    parties               involved." The  section, to avoid the earlier conflict, prescribes  the procedure,  defines  the powers of the Court  and  expressly bars  the maintainability of a suit in respect of  a  relief obtainable under this section.  The section does not  either expressly  or by necessary implication change the nature  of the proceedings.  Its object is limited.  It seeks to  avoid the conflict and to make the scope of the restitution  clear and  unambiguous.  It does not say that an  application  for restitution, which till the new Procedure Code was  enacted, was  an application for execution, should be treated  as  an original  petition.   Whether  an  application  is  one  for execution of a decree or is an original application  depends upon the nature of the application and the relief asked for. 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 (1)  [1922] L.R. 49 I.A. 351, 355. 451 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. Now  let us consider the arguments pressed on us for  taking the contrary view.  It is said that when an appellate  Court makes  a decree setting aside the decree of the first  Court without  providing for restitution, there is  no  executable decree for restitution.  But this argument concedes that  if the appellate Court provides for restitution, an application for  restitution will be an application for execution  of  a decree.   Even  if  it  is  an  execution  application,  the procedure to be followed and the power of the Court to order a  restitution  would  be confined to s. 144  of  the  Code. Therefore, an execution application for restitution would be governed  by s. 144 of the Code of Civil Procedure.  If  the argument  of  the  learned  counsel  for  the  appellant  be accepted,  it will lead to inconsistent positions  depending upon  whether  the  appellate decree gave  a  direction  for restitution  or it did not.  If it did not, the  application would become an original petition; if it did, it would be an execution  application.  This inconsistency can be  avoided, if  such  a direction for restitution be  implied  in  every appellate  decree setting aside or modifying the  decree  of the  lower Court, even if it does not expressly give such  a direction. The  second objection is that if the view of the High  Court is  correct, s. 144 would become redundant, as s. 47 of  the Code  covers  the same field.  Even under the  Act  of  1882 there  were two sections, namely, s. 583, corresponding,  to some  extent,  to s. 144 of the present Code,  and  s.  244, corresponding to s. 47 of the present Code.  Even so,  there was  a conflict under the old Code as regards the  scope  of restitution and also as regards the question of the bar of a suit in a civil Court.  Section 144 was enacted to avoid the conflict, to clarify the doubts, and to define the powers of the  Court.  Sub-section (2) of s. 144 of the Code of  Civil



Procedure,  1908, was enacted to obviate any further  debate on the question of bar of a suit. The  next criticism is that while execution proceedings  are confined  to  Part  11 and Order XXI of the  Code  of  Civil Procedure, the Legislature, presumably to make it clear that an   application  for  restitution  is  not   an   execution application, placed it in Part XI thereof under the  heading "Miscellaneous".   The placing of a particular section in  a Part of the Code dealing with a specific subject-matter  may support the contention that section deals 452 with a part of the subject dealt with by that Part, but that cannot  be  said when a particular section appears  under  a Part dealing with miscellaneous matters.  The Part under the heading "Miscellaneous" indicates that the sections in  that Part  cannot  be allocated wholly to a Part dealing  with  a specific subject, for the reason that the sections  entirely fall  outside  the other Parts or for the reason  that  they cannot  entirely  fail within a particular Part.   They  may have  a  wide scope cutting across different  parts  dealing with specific subjects.  Section 144 may have been placed in Part  Ill.. as relief of restitution may cover  cases  other than those arising in execution of a decree of an  appellate Court  setting,  aside the decree of a Court  under  appeal. Indeed  there  is  a conflict on the  question  whether  144 applies  to an order setting aside an ex-parte decree, to  a decree   setting  aside  another  decree  in  a   collateral proceeding  and to dependent decrees etc.  That apart,  even under the earlier Code, s. 583 was not placed in the chapter dealing  with "execution", but only in the  chapter  dealing with  appeals.   Indeed,  some of the sections  in  Part  XI partly  deal  with  execution a matters :  see  ss.  132(2), 135(3), 135A, etc.  The fact that a section has been  placed in  a particular Part for convenience of arrangement  cannot affect the question if in reality the application is one for execution : at the most it is only one of the  circumstances relevant  to the present enquiry; it is lot decisive of  the question one way or other. Nor can we accept the argument that if an application  under s. 144 of the Code of Civil Procedure is an application  for execution,  it will be inconsistent with s. 38 of the  Code. Under  s.  144 an application can be filed only  before  the Court of the first instance whereas under s. 38 a decree may be  executed either by the Court which passed it or  by  the Court  to which it is sent for execution.  But under  s.  37 the  expression "Court which passed a decree", or  words  to that effect, shall in relation to the execution of  decrees, unless  there  is  anything  repugnant  in  the  subject  or context,  be deemed to include, (a) where the decree  to  be executed  has  been  passed in  the  exercise  of  appellate jurisdiction, the Court of first instance, and (b) where the Court  of  first  instance has ceased to exist  or  to  have jurisdiction  to execute it, the Court, which, if  the  suit wherein the decree was passed was instituted at the time  of making  the  application for the execution  of  the  decree, would have jurisdiction to try such suit.  It is, therefore, clear  that  the expression "Court which  passed  a  decree" includes the Court of first instance where the decree to  be executed  has  been  passed in  the  exercise  of  appellate jurisdiction.  A combined reading of 453 ss. 37 and 38 indicates that the Court of first instance  is the  Court which passed the decree within the meaning  of  s 38,  and,  therefore, an application for  execution  of  the decree can be filed therein.  If the Court of first Instance



is deemed to be the Court which passed the decree, we do not see  any  difficulty  in holding that  the  ,aid  Court  can transfer the decree under s. 39 of the Code. The contention that the determination of a question under s. 144  of the Code is included in the definition of  a  decree under s.  2(2)  of  the Code has also no  relevance  to  the question before us. The  said  definition takes in  both  an order made under s. 47 and    that made under s. 144 of  the Code.  The said two sections are   included for the  purpose of giving a right of appeal.  If an execution application to which  s.  47  applies does not cease  to  be  an  execution application  by reason of the section being included in  the definition  of "decree", an execution application  under  s. 144 cannot likewise cease to be one for the reason that  the said section is included in the definition of "decree". If  the argument of the appellant be accepted, it will  lead to  many anomalies.  If a respondent in the appeal  did  not execute  the  decree  in  his  favour  and  the  appeal  was dismissed, the period of limitation for executing the decree would be governed by Art. 182 of the Limitation Act, whereas if  he  executed  the decree and  had  illegally  taken  the property from the appellant, though the appeal was  allowed, the  period of Limitation for restitution would be  governed by  Art. 181 of the Limitation Act.  If the appellate  Court gave  a direction in the decree for restitution, the  period of limitation for executing the decree would be -governed by Art. 182 of the Limitation Act, whereas if no such direction was given, it would be governed by Art. 181 thereof.   Where an appellant was a minor or under a disability he could  not take  advantage of the periods of extension  provided  under ss.  6  and 7 of the Limitation Act, though the  appeal  was allowed  in  his  favour,  by  filing  an  application   for restitution;  whereas  if  the  appeal  was  dismissed,  the respondent,  if  he  happened  to be  a  minor  or  under  a disability,  would  get  the  extension  for  executing  the decree.   If  an  application for  restitution  was  not  an application for execution of a decree and if the restitution was  stayed by a second appellate Court, under s. 15 of  the Limitation Act the time during which the party was prevented from applying for restitution could not be excluded, even if ultimately  the  appeal was dismissed, with the  result  the application   for   restitution  would  get   barred.    The construction  suggested  by  the  learned  counsel  for  the appellant will lead to 454 the said anomalies.  The existence of anomalies may have  no relevance  when  a  provision  of a  statute  is  clear  and unambiguous,  but it will certainly have a bearing when  the section is ambiguous. As  we have already indicated, there are strong currents  of judicial   opinion  expressing  conflicting  views  on   the construction of S. 144 of the Code of Civil Procedure.   The Madras  High  Court in Somasundaram v.  Chokkalingam(1)  and Chittoori  Venkatarao  v.  Chekka Suryanarayana  (2)  ,  the Bombay  High Court in Kurgodigouda’v.  Ningangouda  (8)  and Hamidalli  v.  Ahmedalli  (4)  , the  Patna  High  Court  in Bhaunath  v.  Kedarnath(5),  the  Chief  Court  of  Oudh  in Chandika  v. Bital(6), the Rangoon High Court in  A.M.K.C.T. Muthuukarauppan Chettiar v. Annamalai(7), the High Court  of Travancore-Cochin  in  Kochu Vareed v. Mariyam(8),  and  the Madhya  Pradesh  High Court in Choudhary Hariram  v.  Pooran Singh(9)  held that an application under s. 144 of the  Code of  Civil  Procedure was an application for execution  of  a decree,  while  it  had  been held  by  the  High  Court  of Allahabad in Parmeshwar Singh v. Sitaldin Dube(") and  other



cases,   the  Calcutta  High  Court  in   Sarojebhushan   v. Debendranath(11) and Hari Mohan Dalal v. Parmeshwar Shau(12) and  other cases, the Nagpur High Court in  Khwaja  Allawali Kesarimal(13),  and  the Punjab High Court in  Mela  Ram  v. Dharam   Chand  and  Amrit  Lal(14)  that  it  was  not   an application   for  execution.   We  have  gone  though   the judgments  carefully  and we have derived  great  assistance from  them.   If we are not dealing with each of  the  cases specifically,  it is only because we have practically  dealt with   all  the  views.   We  realize  that   the   opposite construction  for  which the appellant contended is  also  a possible one; but it ignores the history of the  legislation and  the  anomalies  that it introduces.   On  a  procedural matter pertaining to execution when a section yields to  two conflicting constructions, the Court shall adopt a construc- tion which maintains rather than disturbs the equilibrium in the field of execution.  The historical background of s. 144 of the Code of Civil Procedure, the acceptance of the  legal position  that  an application for restitution  is  one  for execution  of  a  decree by a number  of  High  Courts,  the inevitable adoption of the said (1) [1916] I.L.R. 40 Mad. 780. (2) I.L.R. 1943 Mad. 411. (3)   [1917]  I.L.R. 41 Bom. 625. (4) [1920] I.L.R. 45 Bom. 1117. (5)   [1934] I.L.R. 13 Pat. 411 (F.B.). (6)  [1930] I.L.R. 6 Luck. 448. (7)  [1933] I.L.R. 11 Rang. 275. (8)  A.I.R. 1952 T.C. 40. (9)  A.I.R. 1962 M.P. 295. (10)  [1935] I.L.R. 57 All. 26 (F.B.). (11)   [1932] I.L.R. 59 Cal. 337. (12)  [1929] I.L.R 56 Cal. 61. (13) I.L.R. 1947 Nag. 176. (14)  [1958] I.L.R. Xi (1) Punj. 407(F.B.) 455 legal  position by innumerable successful appellants  within the  jurisdiction  of  the said High  Courts,  the  possible deleterious  impact of a contrary view on  such  appellants, while  there  will be no such effect on  similar  appellants within the jurisdiction of the High Courts which have  taken a contrary view, also persuade us to accept the construction that the application for restitution is one for execution of a decree.  We, therefore, hold on a fair construction of the provisions of s. 144 of the Code of Civil Procedure that  an application for restitution is an application for  execution of a decree. Coming  to the second application, namely, Special  Darkhast No.  7 of 1953, filed for recovery of costs, undoubtedly  it is  governed  by Art. 182 of the Limitation  Act.   But  the appellant contends that the High Court wrongly held that the said  application being within 3 years from the date of  the amended decree, namely, August 24, 1950, it was within time. Under  cl.  (4)  of  Art.  182  of  the  Limitation  Act  an application for execution of a decree can be filed within  3 years,  where the decree has been amended, from the date  of the  amendment.  Dr. Barlingay contended that the  amendment dated August 24, 1950, was only analogous to a correction of a clerical mistake and. was not an amendment affecting,  the rights  of  the  parties  and,  therefore,  it  was  not  an amendment   within  the  meaning  of  Art.  182(4)  of   the Limitation Act.  It is not necessary to decide in this  case whether the expression "amendment" in the said clause  takes in  an amendment of a clerical error, for we  are  satisfied that  on  the  facts  of  the  case  the  amendment  was   a



substantial  one  and that it did affect the rights  of  the parties  under  the decree.  It may be recalled  that  there were 7 appellants in the High Court and the appellate  Court set aside the decree passed by the Trial Court against them. By the amendment dated August 24, 1950, the name of the  7th appellant was struck out from the decree.  The result of the amendment  was that while the original appellate decree  was in favour of the 7 appellants, the amended appellate  decree was  only  in favour of 6 appellants.  To  that  extent  the rights  of the parties were modified by the amended  decree. It  is, therefore, clearly a case where the decree has  been amended  within  the meaning of cl. (4) of Art. 182  of  the Limitation Act. If  so,  the application for execution as well as  that  for restitution  having  been filed within 3  years  from.  that date, both were Sup./65-13 456 clearly within time. In the result, the appeals fail and are dismissed with cost.                            ORDER In accordance with the Opinion of the Majority the Appeal is dismissed with costs.