MANGILAL KAJODIMAL Vs. SHANKAR SHRAVAN NIKAM

JUDGEMENT

(1.) THIS revisional application raises a short and interesting question of law. An order for restitution had been passed against the petitioner by the learned Civil Judge, Junior Division, Jalgaon. The petitioner preferred an appeal against this order in the. Court of the learned District Judge at Jalgaon. The appellate Court has dismissed his appeal on the ground that the appeal is not competent inasmuch as the order of restitution challenged by the petitioner had been passed, not under Section 144, but under Section 151 of the Code of Civil Procedure. That is how the question which has been raised by Mr. Bengeri in the present revisional application before me is whether an appeal lies against an order of restitution passed under Section 151 of the Code. On this question a' sharp difference of opinion has been expressed in judicial decisions and Mr. Bengeri has contended that the view taken in support of the competence of the appeal is more in consonance with justice and equity and he has pressed me to adopt that view.

(2.) IT would be convenient to mention a few material facts leading to the order of restitution under revision. A partnership firm named Nandurdikar and Co. of Jalgaon sued Shankar Nikam for possession of a motor truck and for an account of hire due from him. It was alleged by the plaintiff firm that the truck belonged to the partnership and had been given to Nikam under a hire -purchase agreement, Nikam had failed to comply with the terms of the agreement and had committed defaults in the payment of hire due from him. That was the basis for the claim for the recovery of the truck and for accounts. Pending this suit, an application was made by the plaintiff firm requesting the learned Judge to direct that the truck should be delivered over to the firm on the firm's undertaking to produce the truck if called upon to do so by the learned Judge and on the firm's further undertaking to keep an account of the earnings made by the firm on this truck. On April 13, 1942, the learned Judge granted the application made by the plaintiff firm and the truck was delivered into the possession of the plaintiff firm. Ultimately the suit was dismissed on July 27, 1944. I should have stated that, after the defendant appeared in the suit, hehad made a counter -claim against the firm. This counter -claim also was dismissed by the trial Court. The decisions of the trial Court gave rise to two appeals by the plaintiff and the defendant (Appeals Nos. 241 and 251 of 1944 respectively). Both these appeals were, however, dismissed. On April 26, 1947, the defendant applied for restitution of the truck and asked for accounts to be made in respect of the profits earned by the plaintiff on the strength of this truck. Unfortunately, when the suit was dismissed and even at the time when the appeals were ultimately disposed of by the District Court, no order was passed in respect of the truck which had been delivered over to the plaintiff pending the suit. That is why the defendant had to make a separate application for restitution as late as April 26, 1947. The learned Judge found that the claim for restitution would not be justified within the terms of Section 144 of the Code. He, however, held that this was a claim which should, and could, be entertained under the inherent jurisdiction of the Court under Section 151. On this view, the learned Judge allowed the defendant's claim for restitution and directed that the plaintiff firm should pay the defendantRs. 15,583 -84. This amount includes the value of the truck and the amount of profit earned by the plaintiff by means of this truck during the period the truck was in the plaintiff's possession as a result of the order passed by the trial Court on April 13, 1942. It is against this order that the plaintiff preferred an appeal to the District Court and the learned District Judge dismissed the appeal on the ground that an appeal against an order of restitution passed under Section 151 is incompetent.

(3.) NOW , an order passed under Section 144 of the Code is appealable. It is appealable because it is artificially included ill the definition of the word 'decree' contained in Section 2, Sub -section (2), of the Code, The question which falls for decision in the present re -visional application is: Can it be said that an order of restitution which has been passed under Section 151, and which in substance resembles an order that can be passed under Section 144, can be regarded as a decrree within the meaning of Section 2, Sub -section (2) of the Code ? Section 2, Sub -section (2), which defines a decree, provides that 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit; and it goes on to add that the decree may be either preliminary or final. Then the definition adds that the word 'decree' shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or s. 144. Since an order passed under Section 144 is a decree within the meaning of Section 2, Sub -section (2), an appeal lies against every such order by virtue of the provisions contained in Section 96 of the Code. The argument is that the effect of the order of restitution passed under Section 151 is indistinguishable from the effect of the order of restitution passed under Section 144, the basis for making both kinds of orders of restitution is the same and the object intended to be achieved by passing the said orders is also the same, and so, like the order for restitution passed under Section 144, the order for restitution passed under Section 151 should be held to amount to a decree within the meaning of Section 2, Sub -section (2), and an appeal againstsuch an order should be held to be competent under a. 96 of the Code.