JIWA LAL EVIDE Vs. KHARAGJIT SINGH MISRA

JUDGEMENT

(1.) This is an execution first appeal by a judgment-debtor under the following circumstances:

(2.) The lower Court has disallowed the application on the grounds that Section 144 does not apply. The first ground of appeal to this Court is that Section 144/47, Civil P.C., was clearly applicable. Section 144(1) begins "where and in so far as a decree is varied or reversed." Now, the decree for costs was granted by this Court and it has not been varied or reversed. Section 144 allows restitution in the particular case where an appellate Court varies or reverses a decree of a lower Court and in that particular case only. There has been no variation or reversal by an appellate Court of a decree of a lower Court in the present case. Accordingly Section 144, Civil P.C., has no application. There may be many cases in which a party may consider himself entitled to restitution. It does not follow that the Code has provided for all these cases. In particular Section 144 provides for only one case, that is, the variation or reversal of a decree by an appellate Court. Now, as regards Section 47, this section states:

(3.) This sub-section refers to three matters the execution, discharge or satisfaction of the decree. The execution of a decree is the carrying out of a decree; the discharge or satisfaction of the decree also involves the idea of carrying out the decree. None of these three words imply restitution which is a different idea and implies the restoring of something which has been taken in execution, and to that extent the rectification or alteration of some proceeding in execution discharge or satisfaction. Restitution is in fact the converse of the ideas embodied in Section 47. For authority for the proposition that restitution can be made in the present case learned Counsel for appellant has referred to Lakshminarayan Hiralal v. Laduram Onkar Agarwala 1932 Bom. 96, a ruling of a learned Single Judge. In that ruling it was held that restitution could be granted by "liberally" applying Section 144 and Section 47. The particular facts of that case were different. In that case the lower Court had valued certain bales at Rs. 143-2-6, for which plaintiff had given credit to defendant. That finding was reversed by the appellate Court which valued the bales at over Rs. 5,500. As a result of the appellate Court s order the judgment-debtor was held to have paid more in execution than was under the decree. Under those circumstances it was held that restitution could be granted. The circumstances are different from the present case.