TARA CHAND Vs. CHAMPI

JUDGEMENT

(1.) This is an appeal by a judgment-debtor, Lala Tara Chand, from the dismissal of his application for restitution under Section 144 of the Civil P. C.. He was made a party defendant to a partition suit while he was a minor. He was then over 18 years of age, but under 21; and was, therefore, not a major, being a ward of the Civil Court. On his being brought on the record, he entered into contest after appointing a pleader, and decrees (preliminary and final) were passed against him. He filed two appeals to this Court and his appeals were dismissed. Subsequently, the plaintiff of the suit recovered her costs of the first court and this Court. The present application was for refund of the costs. The preliminary and final decrees in the partition suit have been declared by this Court today to, be null and void.

(2.) The learned Judge of the first court refused to order restitution and hence Tara Chand has appealed. It is argued here that the principle of Section 144 applies, though the decrees themselves were not varied or reversed in appeal. The same words, "varied" and "reversed", are used in Secs.98 and 99 of the Code with reference to an appeal.-It is, therefore, difficult to believe that they are used in this section with a different meaning. At the same time, we are aware of the ruling of the Madras High Court that the provisions of this section may be extended to cases where a decree is set aside as null and void in a separate suit: Tangatur Vs. Gerram (1916) I.L.R. 40 Mad. 299. Whether the provisions apply or not, it is clear that this Court has jurisdiction, under the provisions of Section 151, to exercise its discretion and make such order as may be necessary for the ends of justice. Their Lordships observed in Jai Berhma V/s. Kedar Nath Marwari (1922) I.L.R. 2 Pat. 10; 16: Nor indeed does this duty or jurisdiction arise merely under the said section (i.e. Section 144). It is inherent in the general jurisdiction of the court to act rightly and fairly, according to the circumstances, towards all parties involved.

(3.) A Full Bench of this Court acted in accordance with these principles in Bindeshri Prasad V/s. Badal Singh (1923) I.L.R. 45 All. 369.