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Bhabaranjan Das Dewri Petitioner, v. Nibaran Chandra Gupta Opposite Party,
Factual and Procedural Background
The Respondent (decree-holder) obtained an ex parte decree of ejectment against the Appellant in respect of the Appellant's homestead in 1928. The homestead was sold in execution of that decree and, to set aside the sale, the Appellant deposited Rs. 80 in Court on June 23, 1931, to be paid to the auction-purchaser in accordance with Order 21, Rule 89, Code of Civil Procedure.
The Appellant subsequently instituted proceedings to set aside the ex parte decree on the ground of fraud; the Munsif set aside the ejectment decree by judgment dated February 28, 1933. There was an appeal against that judgment which was dismissed (the opinion records a dismissal on March 29—see the text). A further appeal to this Court was heard and dismissed on February 18, 1936.
On June 11 (the opinion records the year as 1937 in one place), the Appellant applied under Section 144, Code of Civil Procedure, for restitution of the Rs. 80 deposit. The Munsif granted the application for restitution, but the Additional District Judge, Fourth Court, Bakarganj, reversed that order on April 23, 1938, holding that the restitution application was time-barred as being more than three years after February 28, 1933. The Appellant appealed to this Court; the Chief Justice and Justice Mukherjea heard and dismissed the appeal with costs.
Legal Issues Presented
- Whether an application for restitution under Section 144, Code of Civil Procedure, is governed by Article 181 of the Limitation Act and therefore subject to a three-year period of limitation.
- If Article 181 applies, from which date does the three-year limitation period run for an application under Section 144: the date when the trial court first set aside the decree (here, February 28, 1933) or the date when the last appellate court finally disposed of the matter (here, February 18, 1936)?
- Whether the Court should exercise its inherent powers under Section 151, Code of Civil Procedure, to permit restitution despite the limitation bar.
Arguments of the Parties
Appellant's Arguments
- The Appellant (through his counsel Mr. Chatterjee) conceded that Article 181 of the Limitation Act governs but argued that he was not required to apply for restitution immediately upon the trial court's judgment; because an appeal had been taken, he could wait until the Appellate Court's decision and treat the Appellate Court's decree as the operative event from which limitation should run.
- The Appellant's counsel relied on a number of precedents and attempted to distinguish adverse decisions; reference was made to authorities (including decisions adopting the view that the time for certain applications runs from an appellate affirmance in analogous contexts).
- It was suggested that, in any event, the Court could use its powers under Section 151, Code of Civil Procedure, to relieve the Appellant despite the limitation bar.
Respondent's / Opposing Arguments
- The restitution application was resisted principally on the ground that it was barred by limitation — the Appellant's right to apply accrued when the decree was first varied or reversed (the Munsif's judgment of February 28, 1933), and Article 181 prescribes a three-year limitation from that date.
- The Court records that the Additional District Judge accepted the limitation plea and dismissed the restitution application on that basis.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hari Mohan Dalal v. Parmeshwar Sahu | Principles concerning when the right to apply for restitution accrues and the application of Article 181 of the Limitation Act to such applications. | The Chief Justice and Justice Mukherjea give effect to and follow the principles laid down in this decision to hold that the right accrued when the decree was first reversed (i.e., February 28, 1933) and that the application is therefore time-barred. |
| Saroj Bhusan Ghosh v. Debendra Natk Ghosh | Principles concerning limitation and restitution applications under the Code; cited alongside Hari Mohan Dalal as guiding authority. | The Court follows this decision (along with Hari Mohan Dalal) in concluding that the restitution application was time-barred. |
| Atul Chandra Sinha v. Kunja Behary Sinha | A contrary or distinguishable authority; the decision has been distinguished in later cases (including Hari Mohan Dalal). | The opinion notes that Atul Chandra Sinha has been distinguished and commented upon in Hari Mohan Dalal and is therefore not treated as controlling here. |
| Fazaldr Rahaman v. Abdul Samad | Analogy to applications for making a decree final in partition or mortgage suits (i.e., contexts where limitation calculation from appellate affirmance has been considered). | The Court treats this decision as proceeding by analogy to cases about making preliminary decrees final, but finds that the governing principle in those cases does not apply to the present restitution claim. |
| Uma Charan Chakravarti v. Nibaran Chandra Chakravarti | Holds that when a preliminary decree is affirmed in appeal, an application to make the decree final within three years from the date of affirmance is within Article 181. | The Court acknowledges this line of authority (and similar Judicial Committee authority) but distinguishes it as relating to the distinct problem of making a preliminary decree final; it finds that principle inapplicable to the present restitution application. |
| Jowad Hussain v. Gendan Singh | Judicial Committee authority (cited as agreeing that the time for applying to make a preliminary decree final may run from the date of affirmance by the Appellate Court under Article 181). | The Court records this authority and its holding but concludes that the analogy does not carry over to restitution under Section 144 in the present facts. |
| A.M.K.C.T. Muthukarappan Chotiya v. Annamalai Chettyar (Rangoon High Court, A.I.R Rangoon 1933, p. 180) | The Rangoon High Court (following Madras and Bombay High Courts) held that Article 182 (not Article 181) of the Limitation Act applies to applications for restitution; this corresponds to the view that restitution is akin to execution of a decree. | The Court notes this contrary line of authority but rejects it, affirming the view consistently taken by this Court since 1908 that Article 181 applies to restitution applications under Section 144. |
Court's Reasoning and Analysis
The Court's analysis proceeds in the following steps, restricted to the reasoning explicitly stated in the opinion:
- Statutory basis: The application was framed under Section 144, Code of Civil Procedure, which directs that where a decree is varied or reversed the Court of first instance shall, on application of a party entitled to restitution, cause such restitution to be made so far as may be, to place parties in the position they would have occupied but for the decree or the part thereof varied or reversed.
- Nature of relief: The restitution sought here was monetary — payment of Rs. 80 to compensate the Appellant for the Rs. 80 deposited at the time his homestead was sold.
- Applicable limitation provision: The Court holds that Article 181 of the Limitation Act is applicable to an application of this kind and provides a three-year period from the time when the right to apply accrues.
- Accrual date of right to apply: The Court identifies the accrual of the Appellant's right to apply for restitution as the date when the decree was first varied or reversed by the Munsif — namely, February 28, 1933. That, the Court holds, is the "proper date" for the right to apply to be regarded as accruing.
- Calculation and result: Because Article 181 prescribes three years from accrual, an application made on June 11 (as recorded) 1937 was outside the three-year period and therefore time-barred. The Chief Justice explicitly states that the application was time-barred on June 11, 1937.
- Rejection of the 'wait for appeal' argument: The Court rejects the Appellant's contention that the pendency of an appeal gives a right to wait and treat the Appellate Court's decree as the accrual date. The judges hold that the fact of an appeal does not suspend the running of limitation; an Appellate Court's decree into which a trial decree merges does not give a fresh starting point for limitation where the right to apply was already available.
- Distinction from 'making decree final' cases: Justice Mukherjea elaborates that in cases concerning making preliminary decrees final (such as partition or mortgage suits) the governing principle is that only one decree can be made final — the Appellate Court's decree — and therefore the right to apply may arise upon affirmance. The Court finds that principle inapplicable to the present restitution claim because the Appellant's right to restitution did not depend upon affirmance by the Appellate Court.
- Consideration of contrary authorities: The Court notes contrary opinions from the Madras, Bombay and Rangoon High Courts (which preferred Article 182 or treated restitution as execution) but rejects those views and follows the decisions of this Court (including Hari Mohan Dalal and Saroj Bhusan Ghosh) that Article 181 applies and that accrual is at the date of the trial court's reversal.
- Inherent powers under Section 151: The Court declines to exercise inherent powers under Section 151, Code of Civil Procedure, observing that the Appellant either "forgot" or "slept on his rights" regarding the Rs. 80, and that such laches does not justify invoking Section 151 to relieve him from the limitation bar. The judges note that if the case fell outside Section 144 the Appellant could have sought relief by a separate suit.
Holding and Implications
Holding: The appeal is DISMISSED (the Court dismisses the Appellant's appeal and affirms that the application for restitution was time-barred).
Implications and direct effects:
- The Appellant's application under Section 144 for restitution of Rs. 80 is held to be barred by limitation (Article 181 of the Limitation Act), the right to apply having accrued on February 28, 1933, and the application filed on June 11 (as recorded) 1937 being beyond the three-year period.
- The Court refuses to exercise inherent jurisdiction under Section 151 to relieve the Appellant from the limitation bar, on account of the Appellant's laches.
- The effect is to uphold the Additional District Judge's reversal of the Munsif's order granting restitution; the Appellant remains uncompensated under the Section 144 application as a result of the limitation ruling.
- The Court notes that it is following prior decisions of this Court (specifically Hari Mohan Dalal and Saroj Bhusan Ghosh) on the applicable principle; the opinion does not purport to establish a novel precedent but reinforces the existing line of authority of this Court concerning accrual for restitution applications and the applicability of Article 181.
- Costs: The appeal was dismissed with costs; the hearing-fee was assessed at two gold mohurs, as stated by the Chief Justice.
This summary is confined strictly to the statements, dates, authorities and reasoning contained in the provided opinion. No facts or conclusions have been added beyond those expressly set out in the opinion.
The Judgment of the Court was as follows:—
Derbyshire, C.J:— The Appellant appeals from the decision of the Additional District Judge, Fourth Court, Bakarganj, dated April 23rd, 1938, whereby the learned Judge reversed the order of the Munsif whereby the Respondent was ordered to pay a sum of Rs. 80 to the Appellant under sec. 144 of the Code of Civil Procedure.
The facts are these:—
In 1928 an ex parte decree of ejectment was obtained by the decree-holder Respondent against the Appellant in respect of his homestead. The homestead was sold to satisfy the cost of that decree and the Appellant took proceedings to set aside the sale. In the course of those proceedings on June 23th, 1931, the Appellant deposited the sum of Rs. 80 with the Court for payment to the auction-purchaser of the homestead, in accordance with the provisions of Or. 21, r. 89 of the Code of Civil Procedure. On February 28th, 1933, in a suit by the Appellant the decree of ejectment was set aside on the ground of fraud. On March 29th, 1933, there was an appeal against the decree of setting aside the ejectment decree which was dismissed. There was a subsequent appeal in the same matter to this Court which was heard and dismissed on February 18th, 1936. On June 11th, 1937, the Appellant applied to the Court for restitution in respect of the deposit and his application was granted by the learned Munsif but as stated above reversed on appeal by the Additional District Judge. The Additional District Judge held that the application for restitution was time-barred as being more than three years after February 28th, 1933.
Now the application for restitution was made under sec. 144 of the Code of Civil Procedure which provides 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 an 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…”
The order for restitution in this case is one for payment of Rs. 80 to compensate the Appellant for the Rs. 80 he paid to the auction-purchaser when his homestead was sold. The Appellant was entitled to apply under sec. 144 of the Code of Civil Procedure for that compensation when the decree under which those proceedings had arisen was varied or reversed. That date was February 28th, 1933. That was the proper date for him to apply. Art. 181 of the Limitation Act is applicable in a case of this kind and that provides that the period of limitation is three years from the time when the right to apply accrues.
Here the right to apply accrued on February 28th, 1933. Consequently, the Appellant's application was time-barred on June 11th, 1937. In coming to that conclusion I am giving effect to the principles laid down by this Court in the case of Hari Mohan Dalal v. Parmeshwar Shau (1) and in the case of Saroj Bhusan Ghosh v. Debendra Natk Ghosh (2) with which judgments I respectfully agree.
It has been suggested that we should use our powers under sec. 151 of the Code of Civil Procedure in favour of the Appellant. I do not agree. It appears to me that the Appellant either forgot about this Rs. 80 or slept on his rights with regard to it. That is not such conduct as would induce this Court to invoke the special powers under sec. 151 of the Code of Civil Procedure.
In my opinion, this appeal must be dismissed with costs—hearing-fee being assessed at two gold mohurs.
Mukherjea, J.:— I agree with my Lord, the Chief Justice, in holding that this appeal should be dismissed.
There is no dispute about the facts of the case which lie within a short compass. The Respondent Nibaran Chandra Gupta obtained an ex parte decree in an ejectment suit sometime in the year 1928. In execution of the decree for costs passed in that suit the homestead of the Appellant was sold and he had to deposit a sum of Rs. 80 in that Court to set aside the sale. He instituted a suit in the Court of the first Munsif at Perojpur to set aside the ex parte decree on the ground of fraud. That suit succeeded and the ex parte decree was set aside by the Munsif by his judgment dated the 28th February, 1333. Against this decision there was an appeal taken by Nibaran which was dismissed by the First Appellate Court on the 29th March, 1934. Thereupon a second appeal was taken to this. Court and this appeal was eventually dismissed on the 18th February, 1936. On the 11th June, 1932, the Appellant started a proceeding for restitution under sec. 114 of the Code of Civil Procedure and he wanted to recover the sum of Rs. 80 as compensation for the loss of his deposit. This application was resisted principally on the ground that it was barred by limitation. The trial Court negatived this plea. On appeal, the judgment of the trial Court was set aside and the Additional District Judge of Bakarganj rejected this application for restitution on the ground that it was time-barred.
The sole controversy in this appeal centres round the point as to whether the time would run from the date when the ex parte decree was set aside by the Munsif on 28th February, 1933, or from 18th February, 1936, when that judgment was affirmed in second appeal by this Court. It is not disputed by the learned Advocate who appears for the Appellant that the present case would be governed by Art. 181 of the Limitation Act. Both the Courts below have proceeded on this footing and this is in accordance with the view taken in a majority of cases by this Court since the passing of the present Code. This is also the view of the Allahabad, Lahore and Patna High Courts, though contrary opinions have been expressed by the Madras and Bombay High Courts which still adhere to the view that an application for restitution is really an application in execution of the decree. The question therefore that really falls for determination is as to whether the time for such an application ought to be calculated from the date of the decision of the last appeal or from the decree which for the first time gave the Appellant a right to apply for restitution. It is conceded by the learned Advocate for the Appellant that he had undoubtedly the right to pray for restitution at the time when the judgment was passed by the Munsif. His contention is that it was not necessary for him to apply at the first opportunity as there was an appeal taken against that decision of the trial judge and he could wait till the judgment of the Appellate Court was pronounced. After the Appellate Court had passed its decision the decree of the trial Court would no longer be in existence and he would be entitled to base his rights to get restitution on the Appellate Court's decree. I find myself unable to accept this contention as tenable. If the right to apply for restitution was available to the Appellant as soon as the first Court passed its judgment time would certainly begin to run from that date under Art. 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in my opinion, operate to suspend the running of time. Nor would the Appellate Court's decree into which the decree of the trial Court would undoubtedly merge give the party a fresh starting point for limitation.
Mr. Chatterjee who appears for the Appellant has referred us to a number of cases. The decision of Atul Chandra Sinha v. Kunja Behary Sinha (3) has been distinguished and elaborately commented upon in the case of Hari Mohan Dalal v. Parameshwar Sahu . The other cases of which the decision in the case of Fazaldr Rahaman v. Abdul Samad (4) may be taken as a type proceed on the analogy of applications for making a decree final in a partition or mortgage suit. It has been held in the case of Uma Charan Chakravarti v. Nibaran Chandra Chakravarti (5) and also by the Judicial Committee in the case of Jowad Hussain v. Gendan Singh (6) that when a preliminary decree is affirmed in appeal, an application for making the decree final within three years from the date of the affirmance of the Appellate Court's judgment is within the prescribed period under Art. 181 of the Limitation Act. I agree with Sir George Rankin in saying that the governing principle in such cases is, that only one decree can be made final and that is the decree of the Appellate Court. In cases therefore where an appeal has been taken from the trial Court's decision it is the preliminary decree passed by the Appellate Court that can be made final and the right to apply to make the decree final would undoubtedly arise when the Appellate Court has affirmed the judgment of the trial Judge. This principle, in my opinion, is not applicable to the present case. Nothing here was dependent upon the affirmance of the trial Court's decision by the Appellate Court in order to entitle the Appellant to pray for the relief which he now seeks. I am not also impressed by the decision of the Rangoon High Court [A.M.K.C.T Muthukarappan Chotiya v. Annamalai Chettyar (7)] to which our attention has been drawn by Mr. Chatterjee and which is to be found reported in A.I.R Rangoon 1933, p. 180. The Rangoon High Court has followed the Madras and the Bombay view and has held that in case of an application for restitution it is Art. 182 and not Art. 181, Limitation Act, that is applicable. That, as I have said, is quite different from the view which has been consistently taken by this Court since 1908. I therefore agree with my Lord, the Chief Justice and following the decisions in Saroj Bhusan Ghosh v. Debendranath Ghosh and Hari-Mohan Dalal v. Parameshwar Sahu hold that the application for restitution has been rightly held to be time-barred.
A faint attempt has been made by the learned Advocate for the Appellant to induce us to hold that, at any rate, he was entitled to relief under sec. 151 of the Code of Civil Procedure. As my Lord, the Chief Justice, has pointed out the facts of this case are not such as would justify the Court in exercising its inherent powers. If the case according to the Appellant does not come within the purview of sec. 144 of the Code it was open to him to seek his remedy by way of a separate suit.
For these reasons I agree with my Lord the Chief Justice in the order that he has made.
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