1. This appeal arises out of a proceeding under Section 144 of the CPC. Hurmat Ali (appellant) applied for restitution of the land which he had been made to deliver to Matlib Ali under the orders of the Court while his own appeal was pending in the High Court. The land in question was sold by Matlib Ali to Hurmat Ali. The sale was subject to a condition for reconveyance. Matlib Ali instituted a suit for specific performance of the condition relating to reconveyance. The suit was dismissed by the trial Court. In appeal it was decreed by the learned Subordinate Judge. Hurmat Ali appealed to this Court. The appeal succeeded. The decree passed by the learned Subordinate Judge was reversed and that of the trial Court restored. The result was that by the final, decree of the High Court the suit stood dismissed.
2. While Hurmat's appeal was pending in this Court, Matlib sought execution of the decree passed by the learned Subordinate Judge. He got a kabala executed in his favour by the Executing Court in the course of the execution proceeding on depositing a sum of Rs. 150/- as the price of the land. This amount was withdrawn by Hurmat, who has claimed restitution of the land in this case by reason of the reversal of the decree passed by the Court of the Subordinate Judge. Hurmat's application for restitution was resisted. It was contended that in view of the withdrawal of the sum of Rs. 150/- by him, he was estopped from claiming restitution. It was further pleaded that the land had been sold during the pendency of Hurmat's appeal to four persons, (3rd parties) to the knowledge of Hurmat and that they were transferees for consideration without notice. This conduct on Hurmat's part also estopped him from claiming restitution. The plea of estoppel did no prevail with the learned Munsiff. He did no give any finding as to whether land had been sold to third parties with the knowledge on Hurmat, or whether the transferees had purchased it bona fide for consideration without notice. Having found that the plea of estoppel could not be raised against Hurmat, he ordered that a warrant for the delivery of possesion should issue. The learned Addition District Judge was of the view that Hurmat never acquiesced in the decree passed by the learned Subordinate Judge. He appealed from it. He himself avoided executing the kabal in pursuance of that decree and the kabal had to be executed by the executing Court. But acting on what he described as a principle of law that a person cannot be allowed to reap double advantage at the same time, he came to the conclusion that after having accepted the money he could not ask for the restitution of the property. He also observe that the land had been transferred to third parties and that Hurmat had withdrawn the money which was deposited for him in the execution proceeding before the disposal: his appeal. He further presumed that the transfer of the disputed land to third partie was with the knowledge of Hurmat and there fore thought that the transferees might be ??? as bona fide purchasers for value with out notice. In these circumstances, he found that restoration of possession to Hurmat it proceedings under S. 144, would complicate matters involving as it would the ouster on the transferees from Matlib. He, therefore reversed the order of the Munsiff and directed Hurmat to recover possession by a regula suit. Hurmat has appealed from this decision.
3. It may be noticed that no evidence was led by either party in the present proceeding. The learned Munsiff recorded no finding on the question, whether the land had been transferred to third parties with the knowledge of Hurmat, appellant. The learned Additional Distric Judge, therefore, had no basis for the finding that the transfer of the disputed land to third parties was with the knowledge of Hurmat, on that the transferees were bona fide purchasers for value without notice. If he was of the view that this question was necessary for the decision of the case, he should have remanded the case for a finding on this point. In the absence of any evidence, all we have is the Hurmat, appellant, did withdraw the amount which was deposited by Matlib, respondent, in the course of the execution proceeding before the disposal of Hurmat's appeal in order to enable him to get a kabal from the Court for the land in question. This fact by itself would not create any estopped against the appellant so far as his claim for restitution is concerned. Matlib executed the decree which he obtained from the Court on the learned Subordinate Judge during the pendency of Hurmat's appeal. He got the kabala. He also got possession in pursuanc of that decree. The money that he deposite was thus withdrawn by Hurmat under the orders of the Court, but at a time when his appeal was pending. If this withdrawal of the amount deposited by Matlib is enough to ??? the appellant from claiming restitution, the objection should have been taken when the appeal was heard by this Court. At that stage Page: 113it was not urged on behalf of Matlib that having accepted the money, it was not open to Hurmat to take any steps for getting back the and also. This plea was not raised and therefore the decree passed by the learned Subordihate Judge was reversed by this Court.
4. The Anal order passed by this Court entitled Hurmat (appellant) to restitution he parties are bound by it, and the Court of first instance in a proceeding for restitution cannot go behind that order; nor can the ??? of estoppel be invoked against Hurmat in these circumstances.
5. The second contention which requires consideration is whether the application for restitution can be disallowed on the ground that rights of third parties have intervened. As stated above, we have got no basis for a finding on the question whether the transferees were bona fide purchasers for value without notice though at this stage the fact that a deed of sale was executed by Matlib in favour of third parties is not disputed. Assuming that there has been a transfer by Matlib in favour of third parties, it is obvious that the transfer, according to the respondent's own showing, was during the pendency of Hurmat's appeal in this Court. The transferees are, therefore, transferees ‘pendente lite’ and are hit by the doctrine of ‘lis pendens’ which is embodied in Section 52 of the Transfer of Property Act. Such transferees are representatives in interest of the transferor and if the transferor had been a judgment-debtor, it would have been open to the decree-holder to claim restitution not only against the judgment-debtor but also from his transferee ‘pendente lite’. This view appears to be concluded by authority.
6. In ‘Parmeshari Din v. Ram Charan’, AIR 1937 P.C 260, their Lordships of the Privy Council held that
“where the mortgagor transfers the mortgaged property pending the suit for foreclosure on the mortgage and the transferee takes actual possession of the same, the mortgagee decree-holder on the making of the final decree can proceed to execute the decree against the transferee for recovery of possession of the property transferred to him inasmuch as the transferee is on account of the transfer pendente lite, a representative-in-interest of the mortgagor judgment-debtor and is bound by the decree passed against him.”
7. In ‘Sukhan Singh v. Uma Shankar’, AIR 1935 All 65, Niamutullah, J., held that
“section 144, makes it imperative, where a decree passed by the Court of first instance is reversed on appeal, that the Court should place the winning party in the position which he or she would have occupied but for such decree. The winning party is entitled to have her land restored to her free from all encumbrances, including any tenancy that might have been created in the meantime by the party who was succeful in the first Court but eventually was found to have no title to the land. Restitution under S. 144, can be claimed not only against the opposite party, but also his representatives or persons deriving title from him.”
8. In this case the principle of the Privy Council case referred to above has been held to be applicable to the case of a party entitled to restitution even though the party may not be the decree-holder.
9. In ‘Kadir Velu Chettiar v. Kampu Chettiar’, AIR 1941 Mad 315, the view that prevailed was that
“Section 144 should be widely construed. Its object is to put right what was originally an error of the Court and to restore the parties to the position they would have occupied. The word ‘party’ in S. 144 is not confined only to the original parties to the suit, but applies also to persons who become subsequently concerned. When a decree-holder, after having obtained a decree, assigns it to a third party, he is presumed to have the benefit of the decree and, when the third party to whom he has assigned the decree realised the amount, the right to claim restitution arises against both the original decree-holder as well as his assignee.”
10. In ‘J.P. Rego v. Ananthamathi’ AIR 1942 Mad 472, it was held that
“a person who has attached a decree is the representative of the original decree-holder and will be liable, in an appropriate case, to make restitution under the provisions of S. 144.”
11. It was also held that “he was in fact a ‘party’ within the meaning of S. 144.”
12. In ‘Mangal Singh Lakhbir Singh v. Jaggat Ram’, AIR 1940 Pesh 44, Mir Ahmed, J. held that
“the word ‘parties’ mentioned in Section 144 of the CPC, means persons claiming under them which obviously means persons who have succeeded to the position of the parties in the litigation either by contract or by operation of law or in other words who are their representatives.”
13. An assignee was held to be a representative of the original party and was found liable to restitution.
14. From these authorities it is clear that, restitution can be claimed against the representative-in-interest of the original party who has become liable to make restitution of the benefit received by him under the orders of the Court. A transferee or an assignee of a loosing party in the litigation would be his representative-in-interest and for the purpose of S. 144 would be covered by the word ‘parties’; used in the section.
15. Mr. Deb's contention has been that an assignee from an original party to the litigation cannot be treated as a party for purposes of restitution under S. 144. The cases relied on by him in support of this proposition may now be consider.
16. His first case reported in ‘Sadiq Husain v. Lalta Prasad’, 20 All 139, was decided when the old Code of 1882 was in force. Under S. 583 of that Code which corresponds to S. 144 of the present Code, an appellate decree reversing a decree of the lower Court had to contain or was deemed to contain, a direction for restitution in favour of the successful appellant, who could execute the appellate decree for obtaining restitution. This could not be done against a person who was not a party to the appellate decree. The result was that a transferee of the decree or of the property in suit, if not made a party to the appeal, could not be proceeded against under Page: 114that section. S. 144 is not so restricted as S. 583 of the old Code. It contains no express or implied provision similar to the one contained in S. 583 against restitution against the representative or the assignee of a party even if lie is not a party to the appeal. This case is, therefore, of no assistance to him.
17. In ‘Parmanand v. Tharu Lal’, AIR 1937 Lah 169, the next case relied on by him, attachment of certain money was removed after the reversal of a decree. The judgment-debtor paid the money to a third party. It was held that the third party could not be made to restore the money paid to him. It would be noticed that the person to whom the money was paid in this case could not be regarded as a representative or assignee of the party to the suit. The case, therefore, is clearly distinguishable from the present case.
18. The third case he relied on is ‘Rajjahali Khan v. Faku Bibi’, 58 Cal 1070. In this case a party to the suit had sub-let the lands to persons not parties to the case. The subletting came after the lessor had obtained possession in execution of the decree. The learned Judges held that so far as restitution in the case under S. 144 was concerned the question was concluded by authority. They referred to the decision of their Lordships of the Privy Council reported in ‘Raj Raghubar Singh v. Jai Indra Bahal’, 42 All 158, in which it was held that
“Sections 47 and 144 provided for the decision of question relating to the execution, discharge or satisfaction of the decree, and for restitution including the payment of mesne profits when a decree has been varied or reversed; and they enact that such question shall be determined in the suit and not by a fresh suit. But these sections apply only to the parties or the representatives of the original parties and do not apply to sureties.”
19. Following this decision the learned Judges of the Calcutta High Court held that the subleases were created not under the decree nor as a direct or immediate consequence of it, and the persons in whose favour the sub-leases were made were strangers to the litigation, and not the ‘legal representatives’ of any party to the suit. They were, therefore, regarded as not covered by the rule enunciated by their Lordships of the Privy Council in ‘42 All 158’. They surely were not legal representatives, but I am not prepared to say that they were not representative-in-interest of a party to the suit. The case, however, is not of much assistance to the respondent as the learned Judges of the Calcutta High Court held in no uncertain terms that a Court acting under S. 144 cannot refuse to investigate questions whether simple or complicated which may arise in a case if the case comes directly within the scope of S. 144. A case would be within the scope of the section if restitution is sought against the representative of a party, vide ‘Parmeshari Din v. Ramcharan’, AIR 1937 PC 260. I have no doubt that a transferee pendente lite is a representative of the transferor, the party to the suit and is also a person bound by the decree within the meaning of O. 21, R. 35 read with Section 52 of the Transfer of Property Act.
20. The next case to be considered is “Ujagar Singh v. Lekha Singh’, AIR 1941 All 28. In this case a plaintiff pre-emption deposited a certain amount in Court. Part it was removed by the vendee and a part was taken away by a judgment-creditor of the vendee in execution of his own decree. The pre-emption decree was later on reverse Restitution was not allowed against the judgment-creditor of the vendee who was not party to the suit. The judgment-creditor in the case could not be regarded as a representative of the party. He would be a stranger to the suit and in any case his position would certainly be different from a transferee ‘??? lite’ of immoveable property which the subject-matter of the suit itself.
21. The last case relied on by Mr. Deb is ‘Brijlal v. Damodar Das’, 44 All 555 This case supports the appellant. In this case it was held that S. 144 is wide in its terms it includes matters which an Execution Court or an appellate Court could not ordinarily deal with, and the word ‘party’ is not used in the sense ‘party to the suit’, the expression ordinarily found in other parts of the Code dealing with execution matters, but must mean ‘part to the application’.
22. From the above discussion of the relevant authorities, it is clear that the weight of authority is overwhelmingly in favour of the view that restitution can be claimed by a party entitled to it under S. 144 not only against the original party to the litigation but also against his representatives which expression includes representatives-in-interest and is not limited to legal representatives.
23. The alleged sale in favour of the transferees came when the appeal was pending. I admittedly offended against the rule of law contained in Section 52 of the Transfer of Property Act. The transfer, therefore, is of no effect as against the successful party in the case. No complicated question, therefore, arises for decision in this case and there is no difficulty in granting restitution against the transferees.
24. The last contention raised is that the transferees, even if representatives, have not been impleaded or made parties to the restitution proceeding and therefore no order for delivery of possession can be passed against them. This contention also should not prevail in my opinion. It is clear that the appeal against the order of the learned Subordinate Judge could proceed without bringing the transferees on the record. The transferees themselves could not claim as of right that they should be made parties; Order 22, R. 10 of the CPC provides that in the case of assignment, creation or devolution of any interest during the pendency of a suit, the suit, may, by leave of the Court, continue by or against the person on whom such interest is devolved. The Court may permit the continuance of the suit against assignees under this Rule. But if an assignee is not brought on the record, he still remains bound by the decree. It cannot be said, in these circumstances, that it was necessary for Hurmat, appellant, to have brought the transferees on the record in order to bind them with the decree. They were bound by the decree even in spite of the fact that they were not impleaded. If it was not necessary to implead them in appeal, it would not be necessary to implead them in the application for restitution. The Page: 115proceeding is directed against the judgment-debtor and it is in order.
25. In ‘Golam Nalu v. F.W Needham’, AIR 1925 Cal 1243, a purchaser ‘pendente lite’ as held to be a judgment-debtor within the meaning of O. 21, R. 98 and it was held that order under O. 21, R. 98 could be passed against him. In this case B.B Ghose, J., held hat:
“it is a general principle of law that the purchaser ‘pendente lite’ is bound by the decree and such purchase cannot affect any rights obtained by the decree-holder under the decree of the Court. This principle has been codified in Section 52 of the Transfer of Property Act, and it is also recognised in R. 102 of O. 21 of the CPC. The position, therefore, is that the petitioner being a purchaser ‘pendente lite’ is bound by the decree and O. 21, R. 35 lays down that delivery of possession of immoveable property may be made by removing any person bound by the decree who refuses to vacate the property.”
26. The petitioner in the Calcutta case was held to be a person who could be removed under 21, R. 35, I am in respectful agreement with the view taken in this case and hold that notwithstanding the fact that the transferees have not been made parties to the proceeding or restitution, an order for delivery of possession in favour of Hurmat, appellant, could be assed by the Court. In case of resistance, action could be taken under O. 21, R. 98. The ransferees could raise such objections only as are open to their transferor under O. 21, R. 102. For reason given above, this appeal is allowed. The order of the learned Subordinate Judge is set aside. The case is remanded to be Court of the 1st instance for delivery of possession to Hurmat, appellant, in accordance with law, on payment of the amount received by him when he was made to part with possession. Parties shall bear their own costs in his Court.
27. Appeal allowed.