PANCHAPAKESA AIYAR Vs. NATESA PATHAR

JUDGEMENT

(1.) This appeal relates to an application for restitution under Section 144, Civil Procedure Code, in the following circumstances. Neither of the Lower Courts has stated the facts correctly. The Court of first instance, the Principal District Munsif's Court of Tiruvalur, had decreed the plaintiff's (appellant s) suit. On first appeal the second defendant (respondent here) was directed to pay into the first Court Rs. 750 as security for mesne profits. The money was paid into Court on 2nd October, 1917 and the plaintiff drew it out on nth November, 1918. On second appeal in the High Court the plaintiff's suit was dismissed on 1 September, 1919. On 16 August, 1922 the respondent put in an application for restitution in the Court of the Principal District Munsif of Tiruvalur, the Court which had passed the decree. Now in June, 1922 the Court of the Additional District Munsif of Tiruvalur which had hitherto no independent territorial jurisdiction was given such jurisdiction over a locality including the locality of the present cause of action. The Principal District Munsif holding that he had no jurisdiction to entertain the application transmitted it to the Additional District Munsif's Court. That Court held that the Principal District Munsif had no jurisdiction to order such a transfer and directed a fresh application to be put in before him. This was done on 27 September, 1922. On 1st January, 1923 this Additional. District Munsif's Court became the Court of the District Munsif of Nannilam.

(2.) The appellant contended in the 1 Court that the District Munsif's Court of Nannilam had no jurisdiction. That was overruled and the application for restitution was allowed. He appealed to the District Court of East Tanjore, apparently giving up the contention that the District Munsif's Court of Nannilam had no jurisdiction, but contending that the application was barred by limitation. The District Judge held against him and dismissed his appeal and he now appeals here.

(3.) The two points urged here are, that the District Munsif's Court of Nannilam had no jurisdiction, the contention however being on a new argument, and that the application is out of time. The appellant's contention is that Section 144 directs that such application must be put in in the Court of first instance, and points to the difference in language between this section and the old Section 583 where the phrase used was " the Court which passed the decree. " He contends that, since the Court of first instance was the Principal District Munsif's Court Avhich is still in existence, that was the proper Court to which the application should be put in. The Code has not defined for the purpose of Section 144 what is " the Court of first instance " when the "Court of first instance" has lost territorial jurisdiction. Under the old Code there was no such difficulty, since the phrase used " the Court which passed the decree " was defined by Section 649 (present Section 37). The reason for the change of language is not obvious, and it will certainly result in technical difficulties, for example, in a case where the Court which actually passed the decree has been abolished. Section 150, Civil Procedure Code, would not apply in terms to such a case. I think in a case like the present the Court must proceed upon some general principle in interpreting the phrase " the Court of first instance " which would apply even to cases where the Court of first instance has been abolished and must apply such a general principle also to cases where the Court of first instance has ceased to have jurisdiction. I think it clear that the principle laid down in Section 37(b) must be followed. On some such principle the ruling in Lakshmana Goun-dan V/s. Subramania Aiyar (1920) 13 L.W. 67 proceeds.