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Case Number
Judges
  • Rankin, C.J
  • Pearson, J.
Acts
  • Article 181 of the schedule to the Limitation Act, 1908.2.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Rankin, C.J
  • Pearson, J.
Acts
  • Article 181 of the schedule to the Limitation Act, 1908.2.
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Smart Summary

Summary of Opinion — Rankin, C.J.

Factual and Procedural Background

This case arose from a suit for redemption. In July 1922 the trial Court decreed the suit and ordered redemption and restoration of possession; possession was delivered through the Court to the plaintiffs. On appeal the decree was set aside on 9 July 1924. An appeal to the High Court was dismissed and a further appeal under the Letters Patent was dismissed on 7 February 1928. On 27 June 1929 the present appellants applied for restitution under Section 144 of the Code of Civil Procedure (CPC). The first Court granted restitution and ordered it to be given effect. The second Court dismissed the appellants' application as time-barred under Article 181 of the schedule to the Limitation Act, 1908. The present appeal challenges those findings.

Legal Issues Presented

  1. Whether an application under Section 144 of the CPC is an application in execution (and therefore governed by Article 182 of the Limitation Act), or whether it is not an execution application (and therefore governed by Article 181).
  2. Assuming an application under Section 144 is not an application in execution, whether the period of limitation runs from the date of the appellate Court's final dismissal (7 February 1928) or from the earlier date (July 1924) when the decree which first affected the right to restitution was made.

Arguments of the Parties

Appellants' Arguments

  • Mr. Roy Choudhuri, for the appellants, argued first that an application under Section 144 is an application in execution and thus should be governed by Article 182 of the Limitation Act. He asked the Court to treat the question as sufficiently doubtful to refer it to a Full Bench, pointing to existing adverse rulings and inviting the Court to differ from them.
  • Secondly, on the alternative assumption that Section 144 is not an execution application, he contended that the limitation period should be calculated from the dismissal of the Letters Patent appeal (7 February 1928) rather than from the earlier date in July 1924 when the decree first deprived the applicant of the right to restitution.

The opinion does not contain a detailed account of the respondent's opposing arguments beyond the fact that the second Court treated the application as time-barred under Article 181.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Madan Mohan Dey v. Nogendra Nath Dey, [1917] 39 I.C. 640 Single-judge ruling (Chatterjea, J.) in favour of the view that an application under S.144 is an application in execution. The Court noted this as one judicial ruling supporting the appellants' position, but set it against contrary authorities and did not find it decisive to overturn the established view in the High Court.
Harish Chandra v. Chandra Mohan, [1901] 28 Cal. 113 Expressed an opinion (by Stevens and Pratt, JJ.) that tended to treat S.144 as not an execution application; the opinion was described as tentative and obiter. Referenced as part of the Calcutta line of authorities that incline to the view that S.144 is not an execution application; the Court observed that the opinion in this case was tentative/obiter.
Gangadhar Marwari v. Luchman Singh, [1910] 6 I.C. 125 Concerned the old Code; took the view that Article 181 was applicable to S.144 while containing observations that could point the other way. Used as one of the authorities in the discussion; the Court noted mixed observations within this decision.
Ashutosh Goswami v. Upendra Prasad, [1916] 38 I.C. 17 Cited in the line of decisions considering whether S.144 is an execution application; referenced as relying on earlier cases. The Court recorded its place in the chain of authorities but did not treat it as determinative; it was part of the survey of precedents.
Kurupan v. Sadasiva, [1887] 10 Mad. 66 Relied upon in prior decisions that considered the character of S.144. Mentioned as one of the earlier authorities referred to by later cases; the opinion draws attention to reliance upon it in other decisions.
Nand Ram v. Sita Ram, [1886] 8 All. 545 Upon careful reading, indicated by the Court to be an authority potentially pointing the other way to some of the Calcutta decisions. The Court observed that this decision, on scrutiny, appears to support a different view and thus complicates the precedential picture.
Sharfuddin & Cox, JJ. (decision of 1912) A 1912 decision by Sharfuddin and Cox JJ. that followed Harish Chandra’s case; described as an obiter dictum. Noted by the Court as another instance where Harish Chandra’s view was followed, but its obiter character reduced its weight.
Kurgodigouda v. Ningangouda, [1917] 41 Bom. 625 Bombay High Court view that “execution” covers all applications provided for by S.144 (i.e., S.144 should be treated as execution). Referred to as an express contrary view from the Bombay High Court; used to show the divergence of high-court authorities.
Hamidalli v. Ahmadalli, A.I.R. 1921 Bom. 67 Bombay High Court decision aligning with the view that S.144 applications are execution matters. Cited to demonstrate the existence of another significant line of authority (Bombay) contrary to the Calcutta/All-India trend noted by the Court.
Somasundaram v. Chokalingam, [1917] 40 Mad. 780 Decision (1916) that also took the view that S.144 constituted execution proceedings. Included as part of the body of decisions taking the opposite view to the Calcutta/All-India trend.
Jiwa Ram v. Nand Ram, A.I.R. 1922 All. 223 Allahabad High Court conclusion that an application under S.144 is not an application in execution. Cited as one of the recent High Court decisions supporting the general view adopted by the Calcutta High Court; used to bolster the settled opinion against the appellants' contention.
Brij Lal v. Damodar Das, A.I.R. 1922 All. 233 Division Bench of Allahabad following the view that S.144 is not execution. Referred to as further supporting authority from Allahabad.
Baijnath Das v. Balmukund, A.I.R. 1925 All. 137 Single-judge decision in Allahabad in the same sense (S.144 not execution). Noted as continuing the Allahabad line of authority.
Balmukund Marwari v. Basanta Kumari Dasi, A.I.R. 1925 Pat. 1 Full Bench of Patna discussed the question of S.144's character (execution or not) and differed from an earlier Patna decision. Described by the Court as an elaborate Full Bench consideration that aligned with the view rejecting S.144 as an execution application.
Basanta Kumari Dasi v. Balmukund Marwari, A.I.R. 1923 Pat. 871 Earlier Patna decision which was differed from by the Full Bench in Balmukund Marwari v. Basanta Kumari Dasi. The Court recorded the Full Bench's departure from this earlier decision as part of the survey of Patna authority.
Hari Mohan Dalai v. Parmeswar, A.I.R. 1928 Cal. 646 The Court's own earlier judgment on whether, assuming S.144 is not execution, the period of limitation should be calculated from the last appellate decree or from the decree which first conferred the right to restitution. The present opinion refers back to and adheres to the view taken in that earlier judgment; the Court declined to refer that point to a Full Bench.
Jowad Hossain v. Gendan Singh, A.I.R. 1926 P.C. 93 Privy Council proposition that time for applying for a final decree runs from the date when the appeal was decided on the question of the preliminary decree. Referred to by the appellants in support of their contention about the starting point for limitation; the Court considered the authorities but remained of the view previously expressed in Hari Mohan Dalai's case.
Fitzholmes v. Bank of Upper India Ltd., A.I.R. 1927 P.C. 25 Privy Council authority cited alongside Jowad Hossain on when the time for applying for final decree runs. Noted by the Court as part of the Privy Council authorities cited by the appellants; the Court did not find them sufficient to alter its earlier position.
Gajadhar Singh v. Krishan Jiwan Lal, [1917] 39 All. 641 Passage of Promoda Charan Banerji, J. on the nature of final decree and its effect when appeal is preferred. Quoted by appellants' authorities and referenced by the Court in surveying authorities about when a decree becomes final for limitation purposes.
Uma Charan v. Nibaran Chandra, A.I.R. 1923 Cal. 389 Principle about the finality of decrees and the effect of appeals recognized in the Court's earlier reasoning (and in the Full Bench of Allahabad). Referred to in the Court's discussion of the second point (the date from which limitation runs) and acknowledged as recognized in prior decisions.

Court's Reasoning and Analysis

The Court conducted a detailed survey of the authorities from various High Courts and the Privy Council. The analytical path adopted by the Court can be summarized as follows:

  1. The Court first considered the cluster of decisions that treat an application under S.144 as an execution application (notably the single-judge decision in Madan Mohan Dey and several decisions from Bombay and Madras). It acknowledged that there are significant authorities supporting that view.
  2. It then reviewed the Calcutta line of cases and other recent High Court decisions (Allahabad, Patna, Lahore) which have consistently treated S.144 as not being an application in execution and hence governed by Article 181 rather than Article 182. The Court described the Calcutta discussions as not always elaborately reasoned but nevertheless constituting a settled opinion in that High Court.
  3. Having weighed the conflicting authorities, the Court noted the practical and textual considerations: S.144 appears in the chapter dealing with miscellaneous matters (not in the execution chapter of the Code), S.141 does not encompass execution proceedings, and S.144 contemplates claims (including potentially large claims for damages) that do not fit neatly within the usual execution framework. These considerations tend to cast doubt on treating S.144 uniformly as an execution provision.
  4. The Court recognized arguments of convenience favouring treatment of restitution applications as execution matters (because execution and restitution questions often become entangled), but declined to accept convenience alone as a basis for overruling settled High Court authority.
  5. On the second point (the date from which limitation should be calculated if S.144 is not execution), the Court referred to its earlier decision in Hari Mohan Dalai v. Parmeswar and to Privy Council decisions cited by counsel. It reaffirmed the position it had earlier taken: the question of which decree marks the commencement of limitation must take account of the decree that first conferred the right to restitution, and the Court was not persuaded to depart from its prior view.
  6. For both points, the Court considered whether to refer the question to a Full Bench because of the conflicting authorities. While acknowledging the difficulty and the convenience of obtaining a Full Bench ruling to prevent repetitive argument, the Court stated it was not prepared to make such a reference at that stage and was not prepared to disagree with the earlier decisions which stood against the appellants.

Holding and Implications

APPEAL DISMISSED

The Court held against the appellants on both principal contentions: it declined to treat Section 144 applications as execution proceedings such that Article 182 would govern them, and it adhered to its earlier position regarding the date from which the period of limitation runs when an application under S.144 is treated as not being an execution proceeding. The appeal therefore fails.

Consequences imposed by the Court: the appeal is dismissed with costs, including a hearing fee of three gold mohurs.

The Court did not refer the conflicting question to a Full Bench and did not purport to create a new precedent overturning the existing body of High Court decisions. The decision's direct practical effect is to affirm the earlier position and dispose of the present appeal; the opinion records the continuing divergence in authorities across different High Courts but leaves any eventual change to a future Bench or a Full Bench reference that the Court declined to make here.

Show full summary ...

    Saraj Bhusan Ghosh And Others v. Debendra Nath Ghosh And Others

    Rankin, C.J:— In this case, there was a suit for redemption and the suit was in July 1922 decreed and an order made for redemption and restoration of possession. Possession was delivered through Court to the plaintiffs; but, on an appeal being brought, the decree was set aside on 9th July 1924. An appeal was brought to the High Court which was dismissed and a further appeal was brought under the Letters Patent which was also dismissed on 7th February 1928. On 27th June 1929, the present appellants made an application for restitution under Section 144 of the CPC. The first Court gave effect to the claim and ordered restitution. The second Court has dismissed their application as being time barred under Article 181 of the schedule to the Limitation Act, 1908.

    2. Mr. Roy Choudhuri who appears for the appellants in this case has given us a most careful and interesting argument and he asks us, in effect, to deal with two points. First of all, he asks us to say that an application under S. 144 is an application in execution and that, in the present case, the article which governs it is Article 182. There being certain rulings of this Court against him on this point, his argument before us is really directed to persuade us to differ from those rulings and to refer the matter to a Full Bench. The second question upon which Mr. Roy Choudhuri has given us a careful argument is this: On the assumption that an application under Section 144 of the CPC, is not an application in execution, he still contends that in the present case the time from which the period of limitation starts is 7th February 1928—the dismissal of the Letters Patent appeal and not the date in July 1924 when the decree in the redemption suit dismissed the claim for redemption. On that matter also there is authority against the contention put forward by Mr. Roy Choudhuri and there again the purpose of his argument is that we should refer that question to a Full Bench. We have been taken through all the cases and the short effect of them, in my judgment, is this: since the Code of 1908 has altered the language of S. 144 and placed the section in a different part from the previous S. 583, there, has been one ruling, Madan Mohan Dey…Plaintiff, v. Nogendra Nath Dey…Defendant, . . [1917] 39 I.C 640., by a Judge sitting singly as a taxing Judge, namely Chatterjea, J., in favour of the view that an application under S. 144 is an application in execution. Otherwise, the Calcutta cases come to this whether the matter has been reasoned out or whether the matter has been dealt with obiter or otherwise the cases do show an opinion that an application under S. 144 is not an application in execution. On each of the cases cited, there is some room for comment. There is, first of all, the case of Harish Chandra v. Chandra Mohan . [1901] 28 Cal. 113., where the opinion of Stevens and Pratt, JJ., was expressed tentatively and obiter. There is also the case of Gangadhar Marwari v. Luchman Singh . [1910] 6 I.C 125., which appears to have been directly concerned with the old Code and which while it takes the view that Article 181 is applicable has also in it certain observations which tend in an opposite direction. There is the case of Ashutosh Goswami v. Upendra Prasad . [1916] 38 I.C 17..

    3. In that case, it may be noted that besides relying upon the decision in the case of Harish, Chandra v. Chandra Mohan, and the decision in the case of Kurupan v. Sadasiva . [1887] 10 Mad. 66., the learned Judges appear to have relied upon the decision in Nand Ram v. Sita Ram . [1886] 8 All. 545, which upon being carefully read appears to be an authority the other way. There was a decision in 1912 by Sharfuddin and Cox, JJ., where they followed the decision in Harish's case, but this, too, was an obiter dictum. Then there comes a recent case to the decision of which I was a party where a Division Bench holding that Article 181 was applicable to an application under S. 144 referred the question whether, in the circumstances, it was to be applied as on the date of the appellate Court's decree or on the date of the decree which first reversed the decree which had to be executed. Before the Division Bench, both the learned Judges on a review of the cases came to the conclusion that an application under S. 14-1 was governed by Article 181, and, when the Special Bench came to hear the reference made by those learned Judges, it is to be noticed that they thought it their duty Under the Code to accept that finding and to determine the question referred to them not quarrelling with the assumption which underlay the question.

    4. The decision however of the Division Bench was a decision in the same sense as the previous decisions, that is, to the effect that Article 181 is the article applicable to an application under S. 144. I think it may be said on the Calcutta decision that in no one of the cases cited has the question been discussed very elaborately or reasoned very closely. But, if we look at the matter broadly, there has for a number of years been a settled opinion in this High Court to the effect that Article 182 is not to be applied to an application under S. 144. Now, it is quite true that the Bombay High Court in the case of Kurgodigouda v. Ningangouda . [1917] 41 Bom. 625 and in the case of Hamidalli v. Ahmadalli . A.I.R 1921 Bom. 67 has come to a contrary opinion and its view is that “execution” is a phrase which covers all applications provided for by S. 144. A similar view was taken in 1916 in the case of Somasundaram v. Chokalingam . [1917] 40 Mad. 780. On the other hand, in recent years, no less than three High Courts have considered the matter and come to a different conclusion. It is quite clear that the rulings of the Lahore High Court, the Allahabad High Court and the Patna High Court are in the same sense as the decisions of the Calcutta High Court. The case in which the Allahabad High Court came to the conclusion that an application under S. 144 was not an application in execution is the case of Jiwa Ram v. Nand Ram . A.I.R 1922 All. 223, in which the learned Judges disagreed with the view taken under the old Code. This was followed by another Division Bench in the case of Brij Lal v. Damodar Das . A.I.R 1922 All. 233 and again by a single Judge in the case of Baijnath Das v. Balmukund . A.I.R 1925 All. 137.

    5. The matter was very elaborately discussed before a Full Bench of the Patna High Court in the case of Balmukund Marwari v. Basanta Kumari Dasi . A.I.R 1925 Pat. 1, where the decision of Dawson-Miller, C.J, in the case of Basanta Kumari Dasi v. Balmukund Marwari . A.I.R 1923 Pat. 871 was differed from. The result is that there is a good deal of authority in the recent decisions of other High Courts supporting the view that has been generally taken by this High Court upon the question and before we are justified in sending this question to a Full Bench, we have to say that we are prepared to disagree with the Calcutta decisions which are against the contention of the present appellants. The matter is a difficult one; but I am not prepared to say that I disagree with those decisions.

    6. There are a good many matters to be canvassed; but it does seem to me that, having regard to the fact that execution proceedings are not within S. 141 having regard to the fact that large claims for damages may have to be entertained under S. 144 and that S. 144 has not been put in that part of the Code which deals with execution but in the chapter of the Code which deals with miscellaneous matters, it is by no means clear that the contention that an application for restitution is an application in execution ought to be accepted. I realize however that, in view of the language of S. 47 and in view of the fact that it constantly happens that questions of execution become entangled with questions of restitution where the decree of an appellate Court has varied the decree of a Court below affirming it on some points and overruling it on others, there is much to be said as a question of convenience for the view that applications for restitution should be dealt with as execution matters. On the whole however I am not prepared to say that I disagree with the decisions which in this Court stand against the appellants and, while it might be convenient to refer the matter to a Full Bench merely for the purpose of preventing the question being argued over and over again, I am not in a position to say that a reference should be made. Some day no doubt the matter will come before some other Bench which may disagree with this view and, in that case, it may be referred to a Full Bench.

    7. As regards the second point, Mr. Roy Choudhuri has pointed out that the question dealt with by the judgment in Hari Mohan Dalai v. Parmeswar . A.I.R 1928 Cal. 646, was whether assuming that an application under Section 144 of the CPC, was not an application for execution, the time for such an application ought nevertheless to be calculated from the decree of the last appeal and not from the decree which for the first time gave the applicant the right to restitution. This matter was dealt with in the judgment which I gave on that occasion; and, with regard to that Mr. Roy Choudhuri desires to point out that, in the case of Jowad Hossain v. Gendan Singh . A.I.R 1926 P.C 93 and again in the case of Fitzholmes v. Bank of Upper India Ltd. . A.I.R 1927 P.C 25, the Privy Council have affirmed the proposition that the time for applying for final decree runs from the date when the appeal was decided on the question of the preliminary decree. The passage in particular in the former of these cases is pointed out to us where their Lordships agreed with what was said by that very learned Judge Mr. Promoda Charan Banerji, in the case of Gajadhar Singh v. Krishan Jiwan Lal . [1917] 39 All. 641. There the learned Judge said:

    “It seems to me that this rule contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause.”

    8. In the case of Hari Mohan Dalai v. Parmesiuar, the principle in the case of Uma Charan v. Nibaran Chandra . A.I.R 1923 Cal. 389 and in the decision of the Full Bench of Allahabad was recognized and affirmed I The question however is whether, for the purposes of applying Article 181 on the footing that an application under S. 144 is not an application in execution it is necessary to disregard altogether the decree which for the first time gave a right of restitution to the applicant. I cannot say that a consideration of the cases to which our attention has been drawn by Mr. Roy Choudhuri has converted me to a different opinion from that which I expressed in Hari Mohan Dalai's case. That being so, I do not think that point either should be referred by this Court to a Full Bench. In the circumstances, the appeal fails and must be dismissed with costs hearing fee, three gold mohurs.

    Pearson, J.:— I agree.

    K.N/R.K

    9. Appeal dismissed.

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    Comments

    Saraj Bhusan Ghosh And Others v. Debendra Nath Ghosh And Others
    (May 20, 1931)