RAGHU SINGH Vs. SHEW PROSAD RAI

JUDGEMENT

(1.) This appeal is directed against an order by which the Court of Appeal below, in concurrence with the Court of first instance, has refused an application for restitution under Section 141 of the Code of Civil Procedure of 1908. The circumstances under which that application was made may be briefly stated. The respondents commenced an, action against the appellants on the 9th February 1903 for declaration of title to immoveable property, for confirmation of possession, and, in the alternative, for recovery of possession. The suit was decreed on the 31st August 1903 by the primary Court, in these terms: "The plaintiffs do get confirmation of possession, and, in the alternative, khas possession." Upon appeal, this decree was confirmed by the District Judge on the 19th February 1904. On appeal to this Court, the decree of the District Judge was set aside on the 2nd March 1906 and the case was remanded for re-consideration. The District Judge, on the 18th August 1906, again affirmed the decree of the original Court. On appeal to this Court, this decree was set aside on the 6th April 1910 and the case was again remanded. On the 10th June 1910, the District Judge re-heard the appeal and discharged the decree of the Court of first instance. The decree of the District Judge has been this day affirmed by this Court. The position, therefore, is that the erroneous decree of the Court of first instance was in full operation from the 31st August 1903 to the 10th June 1910. The case for the appellants is, that, on the 2nd September 1903, the successful plaintiffs by force obtained possession of the disputed property; they pray, accordingly, that under Section 144 of the Civil Procedure Code, the plaintiffs-respondents be directed to deliver up the property together with the profits enjoyed in the interval by virtue of their possession. The Courts below have dismissed the application on the ground that it is not maintainable under Section 144, inasmuch as, according to the cage of the applicants, the respondents did not obtain delivery of possession by execution of the decree. The Courts have held in substance that the only remedy of the appellants is by way of a suit for ejectment and mesne profits. In our opinion, this view cannot be supported.

(2.) Section 144 provides that 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 which are properly consequential on such variation or reversal. Sub-section (2) of the section further provides that 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). It is worthy of note that the section does not expressly state that the successful party becomes entitled to the benefit by way of restitution, only when he has been deprived of the property in execution of a decree which is ultimately set aside; and we ought not to adopt a narrow construction so as to restrict the application of this salutary provision of the law, which was enacted with a view to shorten litigation and afford speedy relief. In the case before us, on the 31st August 1903, the plaintiffs were declared to be the rightful proprietors of the property. If, as the appellants allege, the successful party subsequently obtained possession, that possession must be attributed to the decree in their favour. Indeed it; has not been suggested to us that after the date of the decree, the respondents could, have taken possession of this property under any independent claim of right; and as they held the decree in their favour, their possession, at that stage at least, could not be deemed wrongful. No doubt, it has ultimately transpired that the decree was erroneously made and, therefore, the plaintiff are liable to restore the property to the appellants. In so far as restitution of the properly itself is concerned, it has not been seriously contended that a separate suit should be brought; in fact, it is conceded that the institution of a separate suit for the purpose would be an idle formality, as there could obviously be no pretence of an answer to the claim. But if, for the purpose of restitution of possession, Section 144 is applicable, it is difficult to appreciate why, in so far as restitution of profits is concerned, the section should be differently interpreted. It may be conceded, as observed in Safaraddi v. Durga Prasad 16 C.L.J. 83 : 16 Ind. Cas. 966 that Section 144 does not create a new substantive right, but merely affords a convenient procedure. Here, however, no question can possibly arise as to the liability of the respondents to restore the profits received by them. What was said by Lord Cairns in President and Governors of Magdalen Hospital v. Knolls (1879) 4 App. Cas. 324 at p. 34 : 48 L.J. Ch. 579 : 40 L.T. 466 : 27 W.R. 602 namely, that when a voidable grant has been made, as the grant is valid till avoided, the right to mesne profits does not exist, is plainly of no assistance to the respondents. When the erroneous decree of the original Court was ultimately reversed, the only possible justification for their possession disappeared, and we cannot discover any conceivable principle of justice, equity and good conscience under cover whereof they may claim to retain the profits. Their learned Vakil has fully realised this position, and has, as a last resort, argued that the appellants should be driven to a new suit to recover the profits. He has frankly confessed that if the plaintiffs are thus driven to institute a new suit they may be met by the plea that they are entitled to recover profits only in respect of three years antecedent to the suit, although, as a matter of fact, they have been kept out of possession of the property for nearly seven years. Whether a plea of limitation can be successfully taken under such circumstances, is at least open to serious doubt in view of the decisions in Sumo Moyee v. Shooshee Mokhee Burmonia 12 M.L.A. 244 : 11 W.R. (P.C.) 5 : 2 B.L.R. (P.C.) 10; Dhunput Singh v. Saraswati Misrain 19 C. 267; Rangayya Appa Rao v. Bobba Sriramulu 27 M. 143 and Holloway v. Guneshwar Singh 3 C.L.J. 182. But, even if it be assumed that the plea of limitation may be urged with some plausibility in a suit for recovery of the profits, that is all the greater reason why relief should be afforded under Section 144. That section, it may be observed, is not limited to restitution of what may be technically described as mesne profits, and if an appropriate order for restitution is made thereunder, no question of limitation arises. The Court will not, in the interests of justice, be astute to force the parties to a separate suit, merely to allow the question of limitation to be raised in a case of this description. The appellants were not in a position to institute a suit against the plaintiffs-respondents before the 10th June 1910, when the suit was ultimately dismissed; and they cannot now be justly driven to another suit to be restored to the position they would have occupied but for the erroneous decree. We may further point out that the principle embodied in Section 144 is of much wider application than the section itself, as is clear from the decision in Beni Madho Singh v. Pran Singh 15 C.L.J. 187 : 14 Ind. Cas. 456 where the doctrine of restitution was applied to a case in which an auction-purchaser had taken possession of the property, and after the reversal of the sale, was held liable to make restitution to the judgment-debtor.

(3.) The result is, that this appeal is allowed, the orders of the Court below set aside, and the case remanded to the Court of first instance in order that the facts may be investigated. The appellants are entitled to their costs in this Court as well as in the Court of the District Judge. We assess the hearing fee in this Court at three gold mohurs. The costs in the Court of first instance will abide the result. All the papers which have been produced in this Court will be made part of the record and transmitted to the Court of first instance, which will consider the question of their admissibility.