GOBIND BEHARI Vs. SHUJAAT-MAND KHAN

JUDGEMENT

(1.) This is an appeal from an order of the Civil Judge of Farrukhabad allowing an application for restitution under Section 144, Civil P.C. On 16 December 1897, the predecessor of the respondents mortgaged 8 zamindari properties with one Lachmi Narain for Rs. 500. On 31 August 1905, 8 zamindari properties and also a house were mortgaged with Raj Kunwar and others for Rs. 10,000, the mortgage of 1897 being satisfied out of the consideration. On 6 August 1914, 8 zamindari properties and the same house and also a grove were mortgaged with Kunwar Bahadur and others, the predecessors of the present appellants. This was a mortgage by conditional sale and the earlier mortgage of 1905 was paid up. It appears that in 1901 there was a settlement and in 1907 there was a partition and there was a change in the mahals and in the description of shares belonging to the zamindars. The mortgagees under the mortgage deed of 6 August 1914, who are the appellants before us, sued for foreclosure and obtained a preliminary decree on 11 February 1930. The property specified in that decree was (as was to be expected) as described in the mortgage deed of 6 August 1914. Subsequently, the decree-holders applied for amendment of the plaint and preliminary decree under Secs.151 and 152, Civil P.C., on the ground that the property had changed its form by reason of the settlement proceedings of 1901 and the partition of 1907, and it was prayed that the specification of property in the plaint and in the preliminary decree be altered accordingly. This application was allowed by the Court below and the plaint and the preliminary decree were amended as prayed. Thereafter the judgment-debtors, i.e. the respondents before us, applied in revision to this Court, and on 7 November 1933, their application was allowed and the order of the Court below allowing amendment of the plaint and the preliminary decree was set aside.

(2.) Meanwhile however a final decree had been drawn up on the application of the decree-holders in accordance with the amended preliminary decree and the decree-holders pat it into execution and obtained possession of the property as specified in the amended plaint and in the amended preliminary decree. After this Court's decision, the respondents to this appeal applied to the Court below under Section 144, Civil P.C., for restitution on the ground that the decree-holders had obtained possession of more property than they were entitled to and were, therefore, liable to restore the excess. That application has been allowed by the learned Judge of the Court below, and hence this appeal. Learned Counsel for the respondents has no instructions, but we have heard learned Counsel for the appellants. The first plea taken by him is that the respondents had no right to apply for restitution. He pleads that, since his clients have obtained possession in accordance with the final decree and since that final decree has not been varied or reversed, there can be no right of restitution until such time as an application shall have been made for its amendment and amendment shall have been made.

(3.) In our opinion, there is no force whatsoever in this plea. We are supported by authority of this Court. In Shadi Lal V/s. Jagdamba Sahai , a certain person sued for recovery of Rs. 14,000 in enforcement of a mortgage and the suit was decreed. The defendants appealed; but, during the pendency of their appeal the decree- holder applied for and obtained a final decree and thereafter he put it into execution and three properties were sold at auction. Then the defendants appeal from the preliminary decree was heard and after the date of auction this Court varied the preliminary decree by reducing the amount from Rs. 14,000 to Rs. 7000 and by directing that such amount was charged upon one of the three properties only. Thereafter an application was made for restitution under Section 144, Civil P.C. The learned Judges at page 669 observe: It was contended by Shadi Lal (i.e., the decree-holder) that the application under Section 144, Civil P.C. was incompetent. It was argued that the defendants not having filed an appeal from the final decree and the property having been sold in execution of the said decree, no application for restoration of possession could be made under Section 144, Civil P.C., because the final decree had neither boon varied nor reversed. This contention was overruled and rightly overruled by the Court below. Where the preliminary decree has been varied or reversed by the Appellate Court, it follows that the final decree passed thereon, and all the execution proceedings, which have taken place in pursuance of the final decree, fall through and that there could be no necessity for filing an appeal from the final decree.