BRIJ LAL Vs. DAMODAR DAS

JUDGEMENT

(1.) This appeal raises two points. It was an application in the court below against a person who had become a transferee of a decree which was subsequently sot aside in the Privy Council in favour of the present appellants. The transferee was not a party to the proceeding in the Privy Council, but under the decree which the Privy Council set aside and of which he had become a transferee, he obtained possession of certain property and was, therefore, in the enjoyment of mesne profits in respect of it. The application to the court below, which was in substance a proceeding under Section 144, but which adopted all the forms applicable to execution proceedings, asked that the respondent should account for mesne profits during the time for which he had been unlawfully in possession under a decree which had been set aside. The application was dismissed by the court below on the ground that it was time-barred by Art. 181 of the Limitation Act, and, secondly, on the ground that the respondent was not a party to the decree which gave rise to the application. A further point was raised under Order II, Rule 2, of the Civil P. C. which obviously has no substance. The case has been extremely well argued on both sides before us and a great number of authorities have been cited on this vexed question. It is not desirable to add more than one is obliged to the tangle which appears to exist with regard to the method of reconciling proceedings under Section 144 with other provisions of the law. It so happens that in the case before us the point whittles itself down to a comparatively narrow compass. We agree with the decision of this Court in the case of Jiwa Ram V/s. Nand Ram (1922) Supra p. 407 that proceedings under Section 144 of the Code are not execution proceedings, although they are, of course, in the nature of proceedings in execution to enforce either directly or indirectly the final decree. We do not agree with the lower appellate court that it is necessary that a party to an application under Section 144 should have been a party to the decree. Section 144 is very wide in its terms. It includes matters which an execution court or an appellate court could not ordinarily deal with, and the word "party" is not used in that section in the sense "party to the suit", the expression ordinarily found in other parts of the Code dealing with execution matters, but must mean "party to the application." It so happens that in this particular case the matters arising out of the final decree of the Privy Council had been already on more than two occasions before this Court, although not always as between the identical parties now before us. We have decided to follow the view taken by this Court in the same or cognate matters arising out of this Privy Council decree. That is to say, firstly, this Court has already held that Damodar Das, although not a party to the Privy Council decree, was bound to give up possession and that an application under Section 144 was properly made against him. We agree. That disposes of the second point decided in his favour by the lower court, Mr. Justice Stuart, in a previous matter which came before him by way of first appeal in May of last year (the case is Madhusudan Das V/s. Birj Lal (1), held that the application was one justified by the provisions of Section 144, and, inasmuch as its only authority was derived from the final decree of the Privy Council, it came within the expression used in Art. 183 of the Limitation Act, as being an application to enforce an order of His Majesty in Council. The words which we have just quoted are clearly capable of being read so as to cover an application of this kind, which is in substance one to enforce a decree of the Privy Council which restored the parties to the position they were in before the High Court interfered. We think the only logical course to take, whatever academic view one might take as a matter of construction in the interpretation of these somewhat difficult provisions, is to follow the view taken by Mr. Justice Stuart in the case of Madhusudan Das V/s. Birj Lal (1921) 61 Indian Cases, 806. The appeal must be allowed and the case restored to the lower court to deal with on the merits. The applicants will have the costs of this appeal. Costs in the court below will abide the result. Ryves, J.

(2.) I agree generally. The facts out of which this case arises are as follows. Some persons sued the appellants for possession of land. They succeeded partially in the trial court, but, on appeal in this Court, succeeded entirely. Thereupon they executed their decree and got possession of the land, and then they transferred a part of the decree to the respondent and put him in possession of a corresponding portion of the land. Thereafter the appellants appealed to His Majesty in Council. The respondent was not made a party to that appeal. On the 9 of February, 1914, the Privy Council passed a decree reversing the decree of this Court and dismissed the suit. It went on to direct that the parties should bear their own costs. On the 8 of March, 1914, the appellants applied to the Subordinate Judge to obtain restitution of possession of the land of which they had been deprived. They based their application on a printed copy of the judgment of their Lordships of the Privy Council, which had been supplied to them by their solicitor in England. It was objected by the other side that the application to the Subordinate Judge was premature and that in any case it could not be based on the report of the Privy Council. It was pointed out that under Order XLV, Rule 15, it was necessary to apply first of all to the High Court to transmit the decree of the Privy Council before its execution could be taken out. The Subordinate Judge over-ruled this objection. On appeal this Court upheld it. The judgment is reported in Damodar Das V/s. Birj Lal (1915) I.L.R.37 All. 567, and I will refer to it later. There were two further applications made to the Subordinate Judge, one for recovery of possession and the other for costs. Both of those were made within three years of the decree of the Privy Council, that is, the 9 of February, 1914. The present application was filed on the 4 of September, 1918, for mesne profits for the period during which the appellants had been kept out of possession of the property. The lower court rejected the application on three grounds. Firstly, that it was barred by Art. 181 of the schedule to the Limitation Act, on the ground that an application for restitution was not an application in execution of a decree, and, therefore, Art. 182 did not apply. It also held that Art. 183 was not applicable, because it was not an application to enforce in terms the decree of the Privy Council. It, therefore, held that the only other article possible was Art. 181 and that under that article the application was barred by time. It also held that, inasmuch as the respondents were no party to the appeal in the Privy Council, they were not bound by that decree. Thirdly, it applied Order II, Rule 2, as barring the application. On this ground also it dismissed the application. On appeal before us all the three points have been attacked, The third point has not been pressed. On the second point I think it is sufficient to say that in previous proceedings for restitution and costs in this very litigation arising out of this decree and in connection with the same property, it has been finally held by this Court that the respondents, though no party to the appeal, are bound by the decree. They, therefore, in my opinion, cannot raise that objection again. On the first point I feel considerable difficulty. It has now been held by this Court in the case of Jiwa Ram V/s. Nand Ram (1922) Supra p. 407 that an application under Section 144 of the Code is not a proceeding in execution under the Civil P. C.. It is unnecessary, I think, to refer to any other rulings of other courts. The question, however, remains as to what, assuming that it is not an application for execution, is the article of limitation which would apply. It has been held in the cases of Ram Singh V/s. Sham Parshad (1918) P.R. p. 224, Krupasindhu Roy V/s. Mahanta Balbhadra Das (1917) 3 Pat. L.J. 367 and Asha Bibi V/s. Nuruddin (1915) 30 Indian Cases 680 from Burma, that applications under Section 144 come within the purview of Art. 181 of the Limitation Act. On the other hand, the Bombay High Court in the case of Sayad Hamidalli V/s. Ahmedalli (1920) I.L.R. 45 Bom. 1137 and the Madras High Court in the case of Unnamalai Ammal V/s. Mathan have held that applications under Section 144 fall within Art. 182 of the Limitation Act. I may point out that all these cases refer to applications under Section 144 from decrees of the High Court and that, therefore, Art. 183 was not and could not have been considered. It has been argued that in the case already mentioned, Damodar Das V/s. Birj Lal (1915) I.L.R. 37 All. 567, this Court has really decided the matter and held that an application of this kind is really a proceeding in execution. In my opinion, however, in order to appreciate that decision it is necessary to examine what were the actual facts before the Court. There an attempt had been made to execute the decree of the Privy Council in the court of the Subordinate Judge on the basis of a copy of their printed judgment only, and without having adopted the procedure laid down in Order XLV, Rule 15. This Court hold that Order XLV, Rule 15, provides that whosoever desires to obtain execution of any order of His Majesty in Council must first apply under that particular order before he can proceed further, and it goes on to say that the word "execution" in that order is intended to cover execution of any kind, because, as they point out, but for the presence of Order XLV, Rule 15, there would be nothing to show what steps should be taken to execute a decree, or to give effect to a decree, of His Majesty in Council.

(3.) In my opinion that case takes us no further. The only case to which we have been referred In which a Privy Council decree has been the subject of decision, is Execution First Appeal No. 93 of 1920, decided by a single Judge of this Court, on the 7 of May, 1921, which has been reported in 61, Indian Cases, 806. There, although it appears from the report that Damodar Das was a party, he is not the same individual as is the respondent here. That case is not in any way res judicata, but it is a decision among other parties to the same litigation and gives effect to the same decree of the Privy Council. It was an application to recover certain costs, and although the order of the Privy Council as to costs was that there should be no order as to costs, this had the effect of reversing the order of the High Court which had given the respondent in that case costs, which he had recovered. Mr. Justice Stuart held that the only authority for the recovery of costs which Brij Lal paid to Musammat Indar Kuar was the order of His Majesty in Council. He held, therefore, that although that application was under Section 144 of the Code, nevertheless the period of limitation applicable was that provided by Art. 183. The language of Art. 183 is different from that of Art. 182. Article 182 provides for "the execution" of a decree or order of any Civil Court. Art. 183 is "to enforce" a judgment, decree or order... of His Majesty in Council. It seems to me that the words "to enforce" there are wider in meaning than the words "to execute" in Art. 182 and should be interpreted as equivalent to "to give full effect to", which is synonymous with "to enforce." In my opinion, therefore, the order of Mr. Justice Stuart was right and we should follow it. I would, therefore, allow the appeal.