MUNICIPAL COUNCIL Vs. RSADAGOPACHARIAR

JUDGEMENT

(1.) The questions for consideration are : (1) Whether an application for execution to obtain the benefit of restitution, which a person became entitled to by reason of an Appellate Court having reversed the decree of the Court of first instance, is an application for execution of the decree passed on appeal, the reversing appellate decree being dated in 1907 before the new Civil Procedure Code came into force. In other words, whether the party who succeeded in the appeal has got a right to treat the appellate decree as not only a decree reversing the decree of the first Court, but also as a decree containing a direction to his opponent to restore whatever benefit the latter had derived through execution under the reversed decree.

(2.) (2) If the above question is answered in the affirmative on the construction of Section 583 of the old Civil Procedure Code, whether the successful party in appeal lost the benefit of that portion of the appellate decree which granted restitution, by reason of the repeal of Section 583 of the old Code and the substitution of Section 144 (1) and 24 M. 343 (2) in the new Code.

(3.) In Venkayya v. Raghavacharlu 20 M. 448, it was held [dissenting from an obiter dictum in Kurupam Zemindar v. Sadasiva 10 M. 66] that applications made to obtainrestitution under Section 583 (old Code) are proceedings in execution of the appellate decree. The language of Section 583 also clearly supports that view, the important words being "decree passed in an appeal obtains execution of the same" and "such Court shall proceed to execute the decree paused in appeal. " The ruling in Vasudeva Ravi Varman v. Narayana Pattar 24 M. 345, on the other hand, treats the application to obtain the benefit by way of restitution as an application sui generis, and not an application for execution of the appellate decree. We do not think it necessary to refer to the other numerous cases decided in all the Indian High Courts relied on by both sides on this question and on the connected questions, including the point whether the successful appellant has the right to bring a separate suit for obtaining the benefit of restitution besides the right to apply under Section 583. Most of those questions are now only of academical interest after the enactment of the new Civil Procedue Code. The appellate decree of 1907 having been passed when the old Code was in force and the view enunciated in Venkayya v. Raghavacharlu 20 M. 448 being, in our opinion, the sounder view, the appellate decree passed in 1907 must be treated as having contained a direction for restitution, which direction could be enforced in execution of that appellate decree.