KHAJA ALLAWALI Vs. KESHARIMAL RAMLAL

JUDGEMENT

(1.) THE question referred to the Bench by Pollock J. is as under: Is an application for restitution under Section 144 Civil P.C. or the principles contained therein governed by Article 181 or Article 182, Limitation Act.

(2.) IT is clear that the reference was necessitated on account of conflict of opinion on the subject. Broadly speaking, the High Courts of Calcutta, Allahabad and Lahore are of the view that an application for restitution under Section 144 Civil P.C. is not an application in execution and is governed for the purposes of limitation by Article 181 while the High Courts of Bombay, Madras, Patna and Rangoon and the Chief Court of Oudh are of the view that such an application is virtually an application in execution and limitation is governed by Article 182, Limitation Act. The decisions of the Nagpur Judicial Commissioner's Court and of the Nagpur High Court are also not harmonious. In spite of this voluminous case law, there are, in our view, very few decisions in which the subject has been discussed elaborately and reasoned very closely.

(3.) IN the first place, there is an essential difference between restitution and execution. Restitution means in law restoring to the party, on the variation or reversal of a decree what has been lost to him in execution of the decree reversed or varied or in consequence of that decree. Execution, on the other hand, is the enforcement of the direction in the executable decree or order--which are usually supposed to be self-contained and to give effect to them. The right of restitution is not based on any statute or on the mandates of a Court contained in its decree or order but on the inherent jurisdiction which every Court has, to repair the injury done to a suitor as a result of its wrong action or decision a principle which is contained in the well-recognized maxim actus curide neminem gravabit. Their Lordships of the Privy Council in a case reported in Jai Berham v. Kedar Nath A.I.R. 1922 P.C. 269 observed thus: It is the duty of the Court, under Section 144, Civil P.C., to 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. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.