Fazl Ali, J.:— The point to be decided in this appeal is whether the appellant is entitled to an order of restitution with respect to some five bales of cotton which were made over to the respondent by one Radha Kishun Choudhry under a compromise. It appears that the Co-operative Society at Allamganj obtained two decrees against Radha Kishun Choudhry and in execution of its decree attached eighteen bales of cotton which were then in the possession of Radha Kishun Choudhry and which were alleged to belong to him. Ten of these bales which were sufficient to satisfy the decree obtained by the Co-operative Society were sold on the 11th October, 1928, and the sale-proceeds remained in the custody of the court. While this execution proceeding was in progress the appellant brought a suit claiming that the eighteen bales of cotton belonged to him and not to Radha Kishun Choudhry. While the suit was pending the court issued an injunction against the Bank as well as Radha Kishun Choudhry directing them not to deal with the bales of cotton pending the decision of the suit. The suit was ultimately decided against the plaintiff and the injunction was withdrawn. Meanwhile the firm of Hare Kishun Radha Kishun had obtained a decree against Radha Kishun Choudhry and proceeded to attach the eight bales of cotton which were still lying in court. Subsequently a compromise petition was filed by Radha Kishun Choudhry and the respondent firm under which five bales of cotton were made over to the latter in satisfaction of its decree whereas three bales were taken away by Radha Kishun Choudhry.
The appellant in the meantime had preferred an appeal which was ultimately allowed and the decree of the trial court was reversed. Thereupon he applied under section 144 of the Civil Procedure Code for the restitution of the five bales of cotton which had been made over to the respondent firm by Radha Kishun Choudhry. The Subordinate Judge before 3 whom the application was made directed restitution holding that the case was governed by section 144 read with section 151 of the Civil Procedure Code. The firm of Hare Kishun Radha Kishun then preferred an appeal before the District Judge who reversed the order passed by the Subordinate Judge, as he was inclined to take the view that section 144 had no application to the facts of the case. The appellant decree-holder, therefore, preferred this appeal.
The first point to be considered is whether section 144 of the Civil Procedure Code has any application at all to the present case. That section runs thus:—
“Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, 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.”
It is to be remembered that in the present case the appellant was never in actual possession of any bales of cotton. It is true that an injunction was issued by the court which tried his suit restraining the co-operative society of Allamganj and Radha Kishun Choudhry from dealing with the bales pending the decision of the suit but that injunction was with drawan as soon as the suit was decided against the appellant by the trial court. The fact, however, remains that the appellant was never in possession of the bales of cotton and although they were actually lying in court, yet, at the time when they were attached at the instance of the co-operative society, they were in the possession of Radha Kishun Choudhry. On a careful reading of section 144 it will be plain that it is meant to apply ordinarily to the class of cases where a person having obtained a decree executes it and recovers some money or property from the judgment-debtor and then the decree is reversed which necessitates restitution of the property or money which the judgment-debtor had to part with at the instance of the court on the ground that the decree is no longer in force. Here no question of restitution can arise because the decree-holder is still free to execute his decree and it is not his case that as a result of the decree of the trial court the bales were taken out of his possession. In Baikuntha Nath Chattoraj v. Prosannamoyi Debi a Bench of the Calcutta High Court dealing with the question as to the class of cases to which section 144 has application made these observations which appear to me to be highly pertinent to this case:—
“Now in the present case, the properties were never in the possession of the appellant, they were not taken out of his possession and made over to the respondent under any decree or order of court. They were in the possession of the respondent at the time, and it was because the respondent had opposed the commissioner in making an inventory of the articles that they were locked up in a room under seal, the keys remaining with the commissioner. That custody of the commissioner was removed upon the application of the respondent and the properties delivered to her upon the application of the respondent when the probate case was decided in her favour by the High Court. It is to be observed that no administrator pendente lite had been appointed by the court.
The probate court could not, after the decision of His Majesty in Council, direct the properties to be made over to the appellant by way of restitution, because they had never been in his possession nor taken out of his possession. The appellant is in the same position which he would have occupied but for the order of the High Court which has been reversed by His Majesty in Council.”
It appears to me, therefore, that section 144 has no application to the facts of this case and that the view taken by the learned District Judge is correct.
It is next urged that if section 144 has no application the order passed by the court of first instance must be taken to have been passed under section 151 of the Civil Procedure Code which section has been expressly referred to by the court in its decision. That being so, it is contended that the order passed by the court of first instance was not appealable and the order of the District Judge must be vacated as being without jurisdiction. The plain answer to this argument is that the application by the appellant to the Subordinate Judge was made expressly under section 144 and the Subordinate Judge dealing with the matter purported to act under section 144 read with section 151 of the Civil Procedure Code. If, therefore, the order was passed by the Subordinate Judge on the footing that the case was governed by section 144 it was certainly appealable and the District Judge had complete jurisdiction to deal with the matter in the way he has.
In the circumstances I would dismiss this appeal with costs.
Courtney Terrell, C.J:— I agree.
Appeal dismissed.