RAMNANDAN PANDEY Vs. JAGARNATH RAI

JUDGEMENT

(1.) In execution of a money decree obtained by the respondent, some lands of the appellants were auction-sold, and the respondent himself purchased them on 6-2-1949. He took delivery of possession over the lands on 26-3-1949. The appellants filed an application under Order XXI Rule 90 and Section 47 of the Code of Civil Procedure and, on that application, the sale was set aside by an order dated 31-5-1950. They then filed an application under Section 144 of the Code of Civil Procedure for restoration of possession of the lands covered by the sale to them and for mesne profits from the date of delivery of possession to the respondent up to the date on which possession was restored to the appellants. The respondent raised, among others, the objection that an application under Section 144 was not maintainable. The appellants filed a petition on 13-12-1952, that their application should be treated to be one under Section 151 of the Code. The Munsif of Gopalganj, who heard the appellants' application, allowed it in part. He directed that possession of the lands be restored to the appellants, and that they would also get mesne profits from 31-5-1950, up to the date on which possession was restored to them, the actual amount of mesne profits to be ascertained later by appointment of a pleader commissioner. The respondent took an appeal against the learned Munsifs order, and it was heard by the Subordinate Judge, 2nd Court, of Chapra. The learned Subordinate Judge allowed the appeal, set aside the learned Munsifs order, and dismissed the application of the appellants. This appeal is directed against the learned Subordinate Judge's order.

(2.) Mr. Kailash Ray, appearing on behalf of the appellants, has contended that the learned Subordinate Judge's order is completely without jurisdiction as he could not entertain an appeal against the learned Munsifs order which was non-appealable. On the other hand, Mr. A. S. Sinha has argued on behalf of the respondent that, in the circumstances of this case, an appeal against the learned Munsifs order was maintainable.

(3.) The determination of any question under Section 144 of the Code of Civil Procedure is a decree as defined in Sub-section (2) of Section 2 of the Code. Under Section 96, an appeal lies against a decree. If, therefore, the Munsif passed the order in question in this case under Section 144, there can be no doubt that an appeal lay against it As I have mentioned, however, it was on an objection raised by the respondent himself that the appellants filed a petition that their application under Section 144 should be treated as an application under Section 151. Mr. Sinha has also admitted that Section 144 does' not in terms apply to this case because the appellants did not become entitled to restitution on account of any decree being varied or reversed. He has also conceded that no appeal lies against an order passed in exercise of the inherent jurisdiction of the Court under Section 151; but he has contended that, where a Court exercises inherent powers under section 151 on the analogy of powers conferred upon it under Section 144, the order becomes appealable. In support of his contention, he has relied upon several decisions of this Court and other Courts. He has pointed out that, in Banarsi Prasad v. Firm Hare Kishun Radhey Kishun, ILR 11 Pat 553 : (AIR 1932 Pat 317) (A), a Bench of this Court held that the application in question in that case was not strictly an application under Section 144 but the order passed in that case was subject to an appeal. In my judgment, that case is clearly distinguishable. The applicant for restitution had, in that case, filed the application under Section 144 and had not, subsequently, prayed for the application being treated as one under Section 151. The Subordinate Judge, who heard the application also purported to act under Section 144 read with Section 151 of the Code. Fazl Ali, J., who delivered the judgment of the Bench, Courtney Terrell, C. J., agreeing, observed :