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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Macleod
  • Shah
  • Hayward, JJ.
Acts
  • Code to the Central Provinces Civil Courts Act of 1865, the Lower Burma Courts Act of 1875, and the Punjab Civil Courts Act of 1877, and the Oudh Civil Courts Act of 1879,
  • Page: 9in Sections 575 and 632 of the CPC, of 1882 and in Sections 98 and 117 of the present CPC, of 1908.
  • provisions of Section 332 of the CPC, of 1859 as amended by S. 23, Act 23 of 1861. These provisions
  • Burma Courts Act of 1875, and the Punjab Courts Act of 1877 contained special provisions
  • Section 332 of the CPC 1859, as amended by S. 23, Act, 23 of 1861.18.
  • Section 575 of the CPC, of 1877 and the provision in S. 632
  • Section 13 of the High Courts Act. Section 96 of the CPC,
  • Indian Councils Act of 1861. S. 4 of the present Code
  • Sections 9, 11 and 13 of the High Courts Act 1861,
  • Section 22 of the Indian Councils Act 1861.
  • Section 13 of the High Courts Act,
  • Indian High Courts Act, 1861,
  • 15. Section 4 of the Code
  • Courts Act, 24 & 25 Vic
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Macleod
  • Shah
  • Hayward, JJ.
Acts
  • Code to the Central Provinces Civil Courts Act of 1865, the Lower Burma Courts Act of 1875, and the Punjab Civil Courts Act of 1877, and the Oudh Civil Courts Act of 1879,
  • Page: 9in Sections 575 and 632 of the CPC, of 1882 and in Sections 98 and 117 of the present CPC, of 1908.
  • provisions of Section 332 of the CPC, of 1859 as amended by S. 23, Act 23 of 1861. These provisions
  • Burma Courts Act of 1875, and the Punjab Courts Act of 1877 contained special provisions
  • Section 332 of the CPC 1859, as amended by S. 23, Act, 23 of 1861.18.
  • Section 575 of the CPC, of 1877 and the provision in S. 632
  • Section 13 of the High Courts Act. Section 96 of the CPC,
  • Indian Councils Act of 1861. S. 4 of the present Code
  • Sections 9, 11 and 13 of the High Courts Act 1861,
  • Section 22 of the Indian Councils Act 1861.
  • Section 13 of the High Courts Act,
  • Indian High Courts Act, 1861,
  • 15. Section 4 of the Code
  • Courts Act, 24 & 25 Vic
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The plaintiff sued for joint enjoyment of the water of a well. The trial Court found in his favour and the plaintiff executed that decree to obtain joint possession of the well water. The defendants appealed; while the first appeal was pending the plaintiff executed and entered possession. The Court of Appeal (first appellate Court) reversed the trial Court's decree and dismissed the plaintiff's suit, and on the defendants' execution the plaintiff was removed from joint possession on 8 November 1911. The plaintiff pursued a second appeal to the High Court; on 7 November 1913 the Court of second appeal restored the trial Court's decree and the plaintiff was restored to joint possession. Two years earlier dispossession (approximately from 8 Nov 1911 to 7 Nov 1913) is the period for which the plaintiff sought restitution by way of compensation under Section 144 of the Civil Procedure Code (CPC).

The lower Courts refused to entertain the plaintiff's Section 144 application. The matter generated disagreement among the Judges considering it: Beaman, J., adopted a view that the plaintiff could not recover compensation under S.144 for the intervening period; Heaton, J., held that the plaintiff could and that the appeal must succeed; Beaman and Heaton together referred a point of law under S.98 CPC to a larger Bench. A Full Bench ultimately answered the procedural question (governing procedure for certain second appeals) and Shah, J., delivered a decision on the S.144 question, allowing the appeal and remanding the application to the Court of first instance for determination on the merits.

Legal Issues Presented

  1. Whether a plaintiff who obtained and executed a decree in the trial Court, was subsequently dispossessed under an intermediate appellate decree (the first Court of appeal) which was later reversed in second appeal, can claim any benefit under Section 144 of the CPC in respect of the period he was dispossessed between the decrees of the first and second appeal Courts.
  2. Whether in second appeals from the mofussil on the Appellate Side of the High Court, where the Judges differ, the procedure is governed by Section 98 of the CPC or by Clause 36 of the Letters Patent (i.e., which procedural rule applies to cases where Judges differ).

Arguments of the Parties

Defendant's Arguments (as presented in the opinion)

  • The lower Courts held, and the defendant's position included, that because the judgment-debtor (defendant) did not gain anything material by obtaining possession under the intermediate (first appeal) decree, he could not be called upon to recompense the decree-holder (plaintiff) for loss. The loss argument was treated by the lower Courts as insufficient to invoke S.144.
  • Mr. Abhyankar, for the defendant, contended that when the plaintiff finally obtains a decree in his favour he can execute it under S.47 (so S.144 has no direct and natural application to such a plaintiff), and that the final appellate Court can, in its final decree, provide such relief (interest, damages or compensation) as would make S.144 unnecessary for a successful plaintiff.

Appellant / Plaintiff Arguments

This opinion does not contain a detailed account of the plaintiff's legal submissions; the text records judicial analyses of the plaintiff's entitlement but does not set out a full pleading of the plaintiff's arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (Full Bench) Held that procedure in second appeals from the mofussil is governed by the Code of Civil Procedure (S.98) rather than by the Letters Patent; earlier Full Bench decision relied upon. Recognised as the earlier Full Bench decision (1879) whose practice has been uniform; Scott, C.J. accepted its conclusion that S.98 governs second appeals from the mofussil.
Surajmal v. Horniman [1918] 47 I.C. 449 Decision limited to appeals from the original side of the High Court — treated as rightly decided for original-side appeals. Scott, C.J. and others regarded Surajmal as correctly decided for original-side appeals; used to delineate scope between original-side and mofussil appeals.
Gossami Sri Sri Gridhariji Maharaj Tickait v. Purushotum Gossami [1884] 10 Cal. 814 (F.B.) Authority of Full Bench in Calcutta approving the application of the Code to certain matters concerning procedure. Cited as an instance of Full Bench decisions in other High Courts approving the application of the Code in analogous contexts.
Husaini Begam v. Collector of Muzaffarnagar [1889] 11 All. 176 Decision that Cl.27 (Allahabad) corresponding to Cl.36 was superseded only insofar as S.575 applied; no absolute supersession. Used to show consistent approach in Allahabad: that the Code applies to subordinate civil courts, but Letters Patent retain force where Code provisions do not apply.
Collector of Ahmedabad v. Samaldas Bechardas (1872) Example of practice following Clause 36 in appellate exercise over mofussil courts (mentioned as earlier authority). Referred to as historical practice applying the Letters Patent rule in certain circumstances.
Sabhapathi Chetty v. Narayanasami Chetty [1902] 25 Mad. 555 Reasoning on original-side procedure; sections of CPC did not supersede Letters Patent for original-side appeals. Applied to support the conclusion that Clause 36 should be followed for original-side appeals.
Chappan v. Moidin Kutti [1899] 22 Mad. 68 (F.B.) Full Bench conclusion that certain CPC sections did not interfere with Letters Patent in original jurisdiction. Cited as supporting authority from Madras confirming limited reach of Code with respect to Letters Patent on original side.
Toolsee Money Dassee v. Sudevi Dassee [1899] 26 Cal. 361 Authority on the interplay between Code and Letters Patent in original-side appeals. Referred to among cases holding that certain Charter provisions remain in force for original-side matters.
Hurrish Chunder Chowdhry v. Kalisunderi Debi [1883] 9 Cal. 482; 10 I.A. 4 (P.C.) Privy Council authority that certain Code provisions did not apply to appeals from one Judge to other Judges of the High Court. Used to support the view that Code provisions govern appeals from subordinate courts, not necessarily intra-High Court appeals between its Judges.
Roop Laul v. Lakshmi Doss [1906] 29 Mad. 1 Held S.575 did not apply to appeals under Cl.15 Letters Patent from High Court judgments in original jurisdiction. Applied as supporting precedent that Clause 36 controls original-side differences of opinion.
Lachman Singh v. Ram Lagan Singh [1904] 26 All. 10 Authority consistent with view separating Code's application (to subordinate court appeals) from Letters Patent (original side). Cited as later authority following the distinction in application of Code vs. Letters Patent.
Debendra Nath Das v. Bibudhendra Mansingh [1916] 43 Cal. 90; 33 I.C. 745 Observation that Code makes no provision for an appeal within the High Court (from a single Judge to other Judges) and that such appeal depends on Cl.15 of the Charter. Quoted to demonstrate the continuing relevance of Letters Patent provisions for intra-High Court appeals.
Mathura Sundari Dassi v. Haran Chandra Shaha [1916] 43 Cal. 857; 34 I.C. 634 A Calcutta Bench decision where judges differed in reasoning about scope of Charter vs. Code. Discussed as a case where the court's reasoning did not produce a uniform ratio; used to show divergence in later Calcutta practice.
Empress v. Burah [1877-78] 3 Cal. 63 (F.B.) Full Bench view touching on legislative powers and the effect on Letters Patent provisions. Referred to in discussion of the relation between legislative power and Letters Patent provisions.
Feda Hossien, In re Petition of [1875-76] 1 Cal. 431 Markby, J.'s observations about special powers (e.g., Clause 36) and legislative competence. Referred to in the context of whether certain special powers in the Letters Patent could be overridden by legislation.
Warrington, Ex parte [1853] 22 L.J. Bk. 33 Authority for principle that an affirmative statute is not repealed by a subsequent affirmative statute unless inconsistent. Cited for the legal rule on repeal by implication when considering whether Letters Patent provisions were superseded by later Code provisions.
Conservators of the Thames v. Hall [1868] 3 C.P. 415 Stated rule that courts must be satisfied two enactments are inconsistent before implying repeal of the earlier statute. Used to support the proposition that the Letters Patent were not impliedly repealed simply because the Code contained general provisions.
Lyn v. Wyn [1665] O. Bridg. 122 (quoted via Sir Orlando Bridgman) Principle that one statute will not be construed to revoke a particular statute where they can operate together. Quoted in support of the approach that Code and Letters Patent should be read to operate together where possible.

Court's Reasoning and Analysis

The opinion contains multiple judgments and a Full Bench determination. The reasoning proceeded in two intertwined strands: (A) whether the plaintiff could obtain compensation under S.144 for dispossession during an intermediate (first appeal) phase; and (B) whether Section 98 CPC or Clause 36 of the Letters Patent governs procedure in second appeals from the mofussil where Judges differ.

A. Reasoning on entitlement under Section 144 (Beaman, Heaton, Shah)

  • Beaman, J.: He analysed the principle of restitution and concluded that restitution is "limited to cases in which the status quo ante suit has been disturbed by a decree which is afterwards reversed." He reasoned that in the present case there were two appellate decrees: the trial Court's decree disturbed the status quo; the first appellate Court restored it (i.e., the first appellate decree restored status quo). Therefore, if the litigation had ended at the first appeal, the defendants would have been entitled to restitution for the intervening period. Extending restitution to the plaintiff for the intervening period between first- and second-appeal reversals would, he thought, create a rule whereby any plaintiff who is finally successful after losing in two courts could claim compensation for all intervening time — a principle he considered unprecedented and unsupported by authority. He thus concluded the plaintiff was not entitled to compensation under S.144.
  • Heaton, J.: He disagreed with the lower Courts' and Beaman's conclusion. He emphasised the plain language of S.144 and the statutory design: S.144 is part of the scheme for executing decrees under appeal and expressly empowers the Court to award interest, damages, compensation or mesne profits. He pointed out that Clause (2) of S.144 (absent from the earlier provision) bars separate suits for relief obtainable under sub-section (1), indicating the legislature intended execution proceedings to address restitution and related relief. Heaton concluded that if the decree-holder suffered loss due to an erroneous intermediate decree (executed against him), he can obtain compensation under S.144 in execution proceedings rather than by a separate suit.
  • Shah, J. (answering the referred point): Shah concluded that the words of S.144 are plain and include "any party," which must include a plaintiff. He rejected the contention that S.144 cannot apply to a plaintiff who was dispossessed under an intermediate appellate decree and later vindicated in second appeal. Shah analysed and rejected two defendant contentions (ascribed to Mr. Abhyankar): (1) that S.47 (execution of the final decree) is the sole avenue for relief of a successful plaintiff; and (2) that the final appellate Court could deal with the relief in its decree and thus S.144 is unnecessary. Shah held that these contentions do not justify excluding plaintiffs from S.144: S.47 and S.144 may overlap but do not render S.144 inapplicable; a final decree might not always address losses arising from change of possession during appeals; and S.144 expressly authorises orders including payment of damages or compensation consequential on reversal. He therefore held the plaintiff could claim under S.144 and remanded the matter to the Court of first instance to determine the merits of the compensation claim.

B. Reasoning on the procedural question (Full Bench — Scott, with concurrence)

  • The Full Bench considered long-standing practice and earlier Full Bench authority (Appaji Bhivrav) holding that second appeals from the mofussil on the Appellate Side of the High Court where Judges differ are governed by Section 98 of the CPC. Scott, C.J., observed that the 1879 Full Bench decision and its resulting practice had been "practically uniform and invariable" and had been approved by Full Benches in other Provinces (Calcutta, Allahabad). He analysed the origin of Clause 36 and the despatches accompanying the Letters Patent, the legislative background, and principles of implied repeal. He concluded that: - For second appeals from the mofussil the procedure is governed by S.98 CPC (Appaji Bhivrav remains authoritative). - For appeals from the original side of the High Court, Clause 36 of the Letters Patent operates and S.98 does not properly apply; the Code and the Letters Patent should be read together where possible.
  • Scott reviewed various authorities from other High Courts and the Privy Council to justify the distinction: the Code's appellate provisions naturally apply to appeals from subordinate civil Courts (mofussil), while the Letters Patent continue to control intra-High Court original-side matters and appeals from one Judge to other Judges of the High Court (where Clause 36 prescribes how to decide a difference).
  • Several other Judges (Heaton, Macleod, Hayward, Shah) concurred with the approach that a distinction must be drawn between appeals arising from the original side and from subordinate courts, and that where S.98 can properly be applied to appeals from the mofussil it should be applied, but Clause 36 still applies to original-side differences of opinion among High Court Judges.

Holding and Implications

Holding:

  • The plaintiff can claim relief under Section 144 of the CPC for the period of dispossession between the decree of the first appellate Court (which dispossessed him) and the decree of the second appellate Court (which restored him). Shah, J., expressly held S.144's plain language ("any party") includes a plaintiff in these circumstances, and remanded the application to the Court of first instance for determination of the merits of the compensation claim. The appellate orders that had dismissed the Section 144 application were set aside; the appeal was allowed and the matter remanded. Costs were ordered to be costs in the application.
  • On the procedural question: The Full Bench answered that, for second appeals from the mofussil on the Appellate Side of the High Court where the Judges differ, the procedure is governed by Section 98 of the CPC (confirming the earlier Full Bench decision in Appaji Bhivrav). By contrast, the Letters Patent (Clause 36) continue to govern the procedure in appeals from the original side of the High Court and in such cases where Section 98 cannot properly be applied.

Implications:

  • Direct effect: the plaintiff's Section 144 application was remanded for adjudication on the merits; the lower Courts' refusals (to entertain the plaintiff's Section 144 claim) were set aside; the plaintiff is entitled to have the claim considered in execution proceedings under S.144, and his appeal on that preliminary issue was allowed.
  • Procedural clarification: the Full Bench reaffirmed the existing practice that second appeals from the mofussil where Judges differ are governed by Section 98 of the CPC, while Clause 36 of the Letters Patent remains applicable to original-side appeals and to cases where Section 98 cannot properly be applied. The Full Bench treated the earlier 1879 Full Bench decision as authoritative on this point and relied on a range of authorities to delineate the boundary between the Code and the Letters Patent.
  • No extension beyond the text: the Court remanded the claim for determination of its merits and expressly did not decide the merits of the compensation claim; it made no factual or substantive finding on quantum or entitlement beyond holding that S.144 can be invoked by a plaintiff in the described circumstances.

Final procedural disposition in the case: Appeal allowed; orders of the lower Courts set aside; plaintiff's application under S.144 remanded to the Court of first instance for disposal according to law; costs to be costs in the application.

Show full summary ...

    Bhuta Jayatsingh v. Lakadu Dhansing .

    Beaman, J.:— (12th March 1918).— The plaintiff has applied for restitution by way of compensation in the following circumstances: He brought a suit to be given joint enjoyment of the water of a well. The trial Court found in his favour. The defendants appealed, but while the appeal was pending the plaintiff took out execution of the decree, and was put in joint possession of the water of the well with the defendants. The Court of appeal reversed the decree of the Court below and dismissed the plaintiff's suit. He appealed to the High Court, but the defendants in turn took out execution and the plaintiff was deprived of joint enjoyment of the water of the well. Two years later the High Court confirmed the decree of the trial Court. The plaintiff asks for restitution by way of compensation for the loss of joint enjoyment of the water for those two years. It is not very easy to find any good reason in the language of the section for refusing in prayer as the Courts below have done. The most I think, that can be said there is that the former section, of which S. 144 of the present Code is an enlargement, found a place in the chapter on first appeals, which lends some sup port to the principle which I would affirm. But I own that on that ground alone I should not feel very confident.

    2. It appears to me however that such a prayer as this is opposed to the principle of restitution. As I understand that principle, it is limited to cases in which the status quo ante suit has been disturbed by a decree which is afterwards reversed. The case Before us has to deal with two appellate decrees. The original decree disturbed the status quo ante, and the decree of the first Court, of appeal restored it. There can be no doubt but Page: 2that, had the litigation ended here, the defendants would have been entitled to restitution for the intervening period by way of compensation had it been in all respects a proper case. That is to say, they would have been entitled to a restoration of the status quo ante the trial Court's decree, under which the plaintiff had disturbed that state of affairs, and along with it compensation for any loss which had been caused them by the premature execution of a wrong decree. In the end what was at that time a wrong decree was shown to be a right decree, and had the defendants not executed the intermediate decree no case would have arisen for compensation by way of restitution. Remembering that at the commencement of the period for which the plaintiff is asking for compensation the parties were relatively occupying the same positions as they had done before the litigation began, can it be said that the plaintiff is entitled to have what he asks? In my opinion it cannot. For if he can, it could only he upon a principle, which being extended to all cases would give a plaintiff who had been defeated in two Courts, but had finally succeeded in the High Court a right of this kind over all the intervening period. No such right has ever yet been claimed, nor if claimed would, I am sure, have been entertained in any Court. Here, for example, had the decree of the trial Court been against the plaintiff, and that decree had been confirmed by the Court of first appeal, the plaintiff would never have obtained joint enjoyment of the water of the well from the institution of the suit to its final decision in his favour some years later by the High Court and most assuredly in that case he would have had nothing upon which to found a claim of this kind. I cannot see that the principle is really affected in any way by the fact that the plaintiff was successful in the trial Court, and lost no time in taking advantage of that Court's decree. If the principle upon which I would decide this appeal be correct it has this great advantage, that it is simple, uniform, and yields this result that in no case can a plaintiff ask for restitution or any of its concomitant modes, under S. 144. I am fortified, too, in my belief that this is the true principle by the fact that the pleader for the appellant could not refer us to a single case among the many which have come up for judicial determination under S. 144 and the corresponding section in the former Code, in which a plaintiff had asked for this relief.

    3. In my view there can never be a true ground for affording relief to a plaintiff on the principle of restitution, for the very simple reason that until he is in under a good decree, he must be taken to have been out all the time, else he had not been a plaintiff and when I say a good decree, I mean a decree which is finally good and beyond the reach of further correction. There might be a difficult case where in facts such as those with which we are dealing, the defendant had asked for and obtained restitution in the form of compensation under the intermediate decree. It might then be a question whether when the final decree re-affirmed the first decree, the plaintiff would not at least be entitled to be re-imbursed anything he had been compelled to pay to the defendant under the head of restitution. That however would be a genuine, though I think a very rare, case of restitution, and we may wait till it occurs before we express any definite opinion upon it. I would dismiss this appeal and confirm the order appealed against with all costs upon the appellant.

    Heaton, J.:— A litigant obtained a decree entitling him to the use jointly with another person of a well, I will call him the decree-holder and the other the judgment-debtor. The former applied to the trial Court to execute the decree and was-placed in joint possession of the well with the judgment-debtor. Thereafter as the decree was reversed in first appeal he was, on the application of the judgment-debtor, removed from joint possession on 8th November 1911. In second appeal the decree-holder again succeeded and was restored to joint possession on 7th November 1913. He now claims compensation for the period of two years from 8th November 1911 to 7th November 1913 for the loss he has been put to through being deprived of the use of the well water. The claim is made under Section 144 of the CPC. Its merits have not been investigated, for both the lower Courts have decided that this application is not one that can be dealt with under S. 144. He has appealed and in my opinion his appeal must succeed.

    4. The lower Courts have held that as the judgment-debtor did not gain anything material he cannot be called on to recompense the decree-holder for any loss. That, I think involves an absolute misreading of S. 144. The loss incurred by the decree-holder, if any, is due to the fact that the judgment-debtor executed against him an erroneous decree. If he has suffered a loss and if he is entitled to compensation that compensation must be obtained from the judgment-debtor. For the purpose of the argument before us on the preliminary point we must assume that the decree-holder has incurred a loss. If so, I do not doubt that he is entitled to compensation or damages. He was entitled to execute the decree; he did so. He was then ousted and it, turns out that the judgment-debtor ousted him in reliance on a right which is found not to exist. That being so, the decree-holder, in my opinion, is entitled to compensation or damages. The question then arises whether he is to get the compensation or damages under S. 144, or by separate suit. In my opinion it must be under S. 144. That section lays down a law vary different from the old law of S. 583, of the old Code. To begin with, by Cl. (2), which did not form part of, the old section, it is enacted that no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-S. (1). This indicates, with unmistakable clearness, that the intention of the law is to her separate suits and to compel litigants to have these matters cleared up in execution proceedings. Secondly, old S. 583 by its terms applied only to “benefit by way of restitution or otherwise” under a decree made in first appeal. There is no such restriction in S. 144, so the benefit may arise under a decree in second appeal, as it does in this particular case. Thirdly, the comprehensive nature of the section is emphasised by the words expressly empowering the Court to award interest damages, compensation or mesne profits. I read S. 144 as a part of the scheme of the Code as to executing decrees under appeal. Execution of such decrees is not forbidden nor even discouraged, as appears clearly from Rr. 5 to 8, O. 41 of the Code. But safeguards are provided. On the one hand, the decree-holder may be required to give security if he executes the decrees; on the other, the judgment-debtor may be required to give security in order to avoid having the decree executed. But this is not enough and S. 144, I think, supplies what is wanting and enables the Court to settle in execution all questions as to the loss one party or the other is put in executing any decree subsequently varied or reversed.

    Beaman and Heaton, JJ.:— (12th March 1918)— We will therefore under Section 98 of the CPC, propose to state the following point of law for the decision of one or more Judges: Whether a plaintiff, who has obtained a decree in his favour in the trial Court and gone into possession under it, and has been put out of possession under the decree of the first Court of appeal reversing the trial Court's decree, (no claim for restitution having at this stage been preferred against him by defendant) and who has succeeded in the Court of second appeal which has restored the judgment of the trial Court, can claim any benefit under S. 144 in respect of the time he was dispossessed between the decree of the first and second appeal Courts?

    Beaman, J.:— (21st June 1918)— We think that the point we are considering, being one of frequent recurrence and great importance, had better be settled once for all by a Full Bench. As far back as 1879 the same point was decided by a Full Bench of this High Court. The decision there was that the procedure with which we are concerned was to be governed by the Code of Civil Procedure and not by the Letters Patent. At that time the Code of Civil Procedure contained no section corresponding with S. 4 of the present Code, and on that ground it might reasonably be contended that the decision of the Full Bench has become obsolete. On the other hand in the recent case of Surajmal v. Horniman [1918] 47 I.C 449 I find no reference whatever to the Full Bench's decision in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B) any my learned brother, who was a party to that judgment, cannot say that the case was cited. Again in the opening part of the learned Chief Justice's judgment I find him laying considerable stress on the fact that Page: 4there was no long-established practice in appeals from the original side of the High Court supporting the view that they are governed by the Code of Civil Procedure and not by the Letters Patent. There can be no doubt that rightly or wrongly there is a very long and well-established pratice, dating from the decision of 1879 of the Full Bench, and I believe pratically uniform and invariable up to the present day by which the second appeals from the mofussil are in this respect governed by the Code of Civil Procedure and not by the Letters Petent. While I am not throwing any doubt on the correctness of the decision in Surajmal's case [1918] 47 I.C 449 and speaking for myself I can find no flaw in the reasoning, it is quite possible that on fuller argument other considerations might be adduced peculiar to second appeals from the mofussil which would dispose this Court to uphold the old and invariable practice. If we were to decide in accordance with the earlier Full Bench decision today, it seems to me quite probable that another Bench might prefer to follow the decision in Surajmal's case [1918] 47 I.C 449 and decide differently tomorrow. I, therefore think that it is eminently desirable that these doubts should be finally laid to rest by a decision of the Full Bench and the question we refer to it is: Whether in second appeals from the mofussil on the Appellate Side of this High Court where the Judges differ, the procedure is governed by Section 98 of the CPC or Cl. 36 of the Letters Patent.

    Heaton, J.:— (21st, 1918, June.)— I should be very glad if we could arrive at a definite decision now instead of referring the point to a Full Bench, but unfortunately it seems to me to be practically impossible for us to do this. The decision in Surajmal's case [1918] 47 I.C 449, to which I was a party, is expressly limited to appeals from the original side of this Court. There is a certain amount of argument in favour of making a distinction between original side appeals and mofussil appeals. When we turn to the decision in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B), which is a decision of a Full Bench of this Court, we find that nearly 40 years ago it was definitely laid down that in the case of mofussil appeals, where there is a difference of opinion, the procedure to be followed should be that prescribed by the Code of Civil Procedure and not that proscribed by the Letters Patent. It is undoubtedly difficult for us to override this decision of the Full Bench, even though it appears that in the new Code there is a provision which did not appear in the old Code and which may support a view contrary to that taken by the Full Bench in 1879. It is, I think, more correct, more consonant with the dignity of the Court, seeing that there is what appears to us to be good reason for doubting whether the decision of the Full Bench of 1879 is now in accordance with the law that we should refer the point to another Full Bench.

    OPINION

    Scott, C.J:— The question referred for consideration by the Full Bench is whether in second appeals from the mofussil on the Appellate Side of this High Court where the Judges differ, the procedure is governed by Section 98 of the CPC or Cl. 36 Letters Patent. There can, I think, be no doubt that the procedure must be taken to be governed by Section 98 of the CPC for the question has, as the referring judgment states, been decided by a Full Bench of this Court in 1879, and the practice dated from that decision has been practically uniform and invariable. The decision has also been approved by Full Benches in Calcutta: see Gossami Sri Sri Gridhariji Maharaj Tickait v. Purushotum Gossami [1884] 10 Cal. 814 (F.B) and in Allahabad in Husaini Begam v. Collector of Muzaffarnagar [1889] 11 All. 176. The Full Bench in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B) considered that the provisions of the Letters Patent had been superseded by S. 575, Act 10 of 1877 so far as regards cases to which S. 575 was applicable. The terms of the reference would be satisfied by an answer in this sense.

    5. The question, however has been argued whether the decision of 1879 in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B) should be extended to cases of appeal from judgments on the original side of the Court where the Appellate Judges differ or whether the recent decision in the case of Surajmal v. Horniman [1918] 47 I.C 449 should stand. In my opinion Surajmal's case [1918] 47 I.C 449 was rightly decided.

    6. The genesis of Cl. 36 can be gathered from the despatch which accompanied the original Letters Patent of 1862. When the High Court was constituted by the Page: 5Original Letters Patent, there was no provision to meet the case of Judges being equally divided in opinion upon appeal. Cl. 14 gave a right of appeal to the High Court in all cases of original civil jurisdiction from the judgment of one or more Judges of the High Court or of any Division Court, pursuant to Section 13 of the High Courts Act, provided that no such appeal should be to the High Court from any decision made by a majority of the full number of Judges of the High Court but that the right of appeal in such cases should be to Her Majesty in Council, Appeals from Courts in the Provinces were governed by Cl. 15, which provided that the High Court should exercise appellate jurisdiction in such cases as were subject to appeal to Sadar Diwani Adaulat and which should become subject to appeal to the High Court by virtue of such laws or regulations relating to civil procedure as should thereafter be made by the Governor-General-in-Council. The Secretary of State for India, Sir Charless Wood, in his covering despatch of 14th May 1862, para. 23, said:

    “It will appear, from a subsequent clause in the Letters Patent, that the proceedings in the High Court in civil cases are to be regulated by the Code of Civil Procedure enacted by the Legislature of India of which Act 23 of 1861 forms a part. By Section 28 of the last mentioned Indian Act, provision has been made for a difference of opinion on the hearing of an appeal. A difficulty, however may occur when two Judges, constituting a Division Court for the trial of cases in the exercise of original jurisdiction, differ as to the judgment to be given. For such a case, the Code of Civil Procedure, which is adapted to Courts of first instance, presided over by single Judges only, contains no provision. To call in a third Judge, and to retry the case, with a view to a judgment from which there may be an appeal to the High Court under Cl. 14, would be productive of unnecessary delay and expense to the parties; and I am of opinion that the Court should make provision for such a contingency, by a rule made under S. 13 of the Act of Parliament, providing either that the judgment shall be in accordance with the opinion of the senior of the Judges constituting the Division Court, or that the final judgment shall be entered pro forma, according to such opinion, such judgment being a judgment for the purpose of an appeal against the same, but not for any other purpose.”

    7. The subsequent clause in the Letters Patent referred to by him was Cl. 37. He observes in the despatch, para. 36:

    “Cl. 37 is a very important one, and, there is little doubt, will prove a very salutary provision. It has therefore been inserted, although the change introduced is somewhat greater and more substantial than is generally aimed at in this Charter. It extends to the High Court the Code of Civil Procedure enacted by the Legislature of India for the Courts not established by Royal Charter, and thus accomplishes the object so long contemplated of substituting one simple code of procedure for the various systems (corresponding to its Common Law, Equity and Admiralty Jurisdiction) which have been in operation in the Supreme Court since the date of its establishment.”

    8. The suggestion of the Secretary of State that a rule should be made under Section 13 of the Act of Parliament that is the High Courts Act, 24 & 25 Vic c. 104, was not given effect to. But in the amended Letters Patent an express provision was made for the case of Judges differing in opinion by Cl. 36, which runs as follows:—

    “And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or any Division Court thereof, appointed or constituted for such purpose, under the provisions of S. 13, of the aforesaid Act of the 24 and 25 years of our reign; and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided then the opinion of the senior Judge shall prevail.”

    9. Clause 15 of the amended Letters Patent also referred to the case of difference of opinion among the Judges of the High Court in relation to appeals-to the Privy Council providing that an appeal:

    “shall also lie to the said High Court from the judgment not being a sentence or order as aforesaid of two or more Judges of the said High Court or of such Division Court, wherever such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the said High Court for the time being; but that the right of appeal from other judgments of Judges of the High Court or of such Division Court shall be to us, our heirs or successors, in our or their Privy Council, as hereinafter provided.”

    10. Clause 36 of the amended Letters Patent is expressed to apply to cases arising in the performance of any function directed by the Letters Patent to be performed by the High Court in the exercise of its original or appellate jurisdiction, and it may be contended that if the latter part of Cl. 36 has been superseded by S. 575 of the Code of 1877, as decided in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B), this clause of the Letters Patent must be taken to be no longer in force. There, are however as it seems to me, cogent reasons Page: 6for holding that Cl. 36 is in force without modification in so far as it relates to proceedings on the original side of the High Court and appeals from Judges of the High Court. In the first place Section 129 of the present CPC, corresponding with Cl. 3. S. 652 of the Code of 1882, provides that

    “notwithstanding anything contained in this Code, any High Court established under the Indian High Courts Act, 1861, may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and-nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.”

    11. The effect of this provision was to bring the Code into harmony with the Letters Patent and to enable the High Courts to regulate the exercise of their original civil jurisdiction accordingly. Thus the High Court may make rules regulating the procedure in cases falling under the second part of Cl. 36 of the Letters Patent, but may not make any such rules which would be inconsistent with that clause unless it can be said that the clause has been impliedly repealed. The law as to repeal by implication is thus stated in Conservators of the Thames v. Hall [1868] 3 C.P 415:

    “The Court must be satisfied that the two enactments are inconsistent before they can from the language of the later imply a repeal of an express prior enactment,”

    12. And the rule laid down by Sir Orlando Bridgman (in his Judgments, p. 121, 127, Lyn v. Wyn [1665] O. Bridg. 122, was quoted that:

    “The law will not allow the exposition to revoke or after by construction of general words, any particular statute, where the words may have their proper operation without it.”

    13. In Warrington, Ex parte [1853] 22 L.J Bk. 33 Turner, L.J said:

    “I take the rule of law to be that an affirmative statute is not without express words repealed by a subsequent affirmative statute unless the two statutes cannot stand together.”

    14. It has never been held that any part of Cl. 36 of the Letters Patent, has been repealed for it is not mentioned in the schedule of repeals annexed, to the Code of Civil Procedure of 1877. The Court in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B) thought the clause to some extent had been “superseded” by S. 575. It had not been removed from the statute book. According to Craies on Statute Law, p. 295, among enactments considered as having ceased to be in force although not expressly and specifically repealed are statutes which have been “superseded,” i.e, where a later enactment effects the same purposes as the earlier one by repetition of its terms or otherwise.

    15. Section 4 of the Code may also be referred to in this connexion. That section reproduces in general language S. 4 of the Code of 1882, which expressly saved the application of the Code to the Central Provinces Civil Courts Act of 1865, the Lower Burma Courts Act of 1875, and the Punjab Civil Courts Act of 1877, and the Oudh Civil Courts Act of 1879, or any law there to fore or hereafter passed under the Indian Councils Act of 1861. S. 4 of the present Code is far more general in its terms than S. 4 of the Code of 1882, for it applies to any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force, and sub-S. (2) is enacted in particular and without prejudice to the generality of the propositions contained in sub-S. (1). It is to be noted that the Lower Burma Courts Act of 1875, and the Punjab Courts Act of 1877 contained special provisions for the case of judges in appeal being equally divided in opinion, which were inconsistent with S. 575 of the Code of 1882 and S. 98 of the present Code, and I am of opinion that the generality of the words used in the present S. 4 should be held to cover the express provisions of the High Court Letters Patent, Cl. 36.

    16. On the other hand, S. 117 of the Code states that save as provided in this part or in Part 10 or in rules, the provisions of this Code shall apply to such High Courts. In view of the other provisions of the Code (and particularly of S. 129 which is in Part 10) this section does not present any difficulty to my mind. The Code must be applied so far as may be to the High Court, and the practice, following on the decision in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B), permits of the application of S. 98 to many cases falling within the High Court jurisdiction. In my opinion S. 98, like S. 104, read with O. 43, R. 1, must he taken to apply to appeals from Courts of inferior jurisdiction to the High Court, and not to appeals from one or more Judges of the High Court. In Gossami Sri Page: 7Sri Gridhariji Maharaj Tickait v. Purushotum Gossami [1884] 10 Cal. 814 (F.B) a Full Bench of the Calcutta Court, who were dealing with a case on the original side of the Court under the Code of 1882, which at that time did not contain the clause subsequently added to S. 652, agreed that the effect of S. 575 was to supersede the provision in Cl. 86 of the Letters Patent that in the event of any disagreement between two Judges of a Division Bench, the judgment of the Senior Judge shall prevail; but and still that, notwithstanding that section, Cl. 15 of the Letters Patent remained in full force, because if the appeal under Cl. 15 of the Charter were taken away, a judgment in the High Court of a Judge in a Division Bench, who agreed with the Court below upon a question of fact, would be absolutely final, and owing to the provisions of Section 597 of the CPC no appeal would be to the Privy Council from such decision. The result arrived appears to me, with all respect, to involve an unnecessary inconsistency.

    17. The reasoning of the Judges of the Madras High Court in Sabhapathi Chetty v. Narayanasami Chetty [1902] 25 Mad. 555, a case arising on the original side, is applicable to the question now under consideration. The conclusion there arrived at, that sections 588 and 591 of the CPC, did not interfere with or supersede Cl. 15 of the Letters Patent, had already been come to by a Full Bench of the Madras High Court in Chappan v. Moidin Kutti [1899] 22 Mad. 68 (F.B), by a Full Bench of the Calcutta High Court in Toolsee Money Dassee v. Sudevi Dassee [1899] 26 Cal. 361 and by the Privy Council in Hurrish Chunder Chowdhry v. Kalisunderi Debi [1183] 9 Cal. 482 , 10 I.A 4 (P.C). A Full Bench of the Allahabad High Court in Husaini Begam v. Collector of Muzaffarnagar [1889] 11 All. 176 was of opinion that Cl. 27, Allahabad Letters Patent, corresponding with Cl. 36 Bombay Letters, was superseded in those cases only to which Section 575 of the CPC, properly and without straining language applied. There was, therefore no absolute supersession of the provisions of the Letters Patent. In Roop Laul v. Lakshmi Doss [1906] 29 Mad. 1 the Court held that Section 575 of the CPC, did not apply in the case of appeals under Cl. 15 Letters Patent from judgments of the High Court in the exercise of its original jurisdiction, and that under Cl. 36 where the Judges are equally divided in opinion, the judgment of the senior Judge would prevail, basing its conclusion upon the reasoning of the Court in Sabhapathi Chetti's case [1902] 25 Mad. 555. It appears to me, therefore, both upon the provisions of the Code and the Letters Patent and the reported decisions of this and other High Courts, that the procedure under Cl. 36 should be followed in case of appeals from the original side. It should also be followed in other cases to which S. 98 cannot properly and without straining language be applied, as was decided by the Allahabad High Court in Husaini Begam v. Collector of Muzaffarnagar [1889] 11 All. 176 and in the later case of Lachman Singh v. Ram Lagan Singh [1904] 26 All. 10.

    Heaton, J.:— I concur.

    Macleod, J.:— Cl. 15 of the Letters Patent ordains that an appeal shall be to the High Court from the judgment of one Judge of the High Court or one Judge of any Division Court pursuant to Section 13 of the High Courts Act. Section 96 of the CPC, enacts that, save, where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court and S. 108 enacts that the provisions of Part 7 relating to appeals from original decrees shall, so far as may be, apply to appeals from appellate decrees. S. 96, therefore, does not deal with appeals under Cl. 15 of the Letters Patent and, therefore, I think, it follows that the provisions of S. 98 are not applicable to such appeals, but they may be taken as altering or amending the provisions of Cl. 36 of the Letters Patent with respect to second appeals on the appellate side of the High Court, as was decided in Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B) except that the less accurate expression “supersede” was used.

    Shah, J.:— I agree with the learned Chief Justice.

    Hayward, J.:— I think this is a case in which a consideration of the contemporaneous circumstances surrounding the legislation in this somewhat intricate matter is essential for a right appreciation Page: 8of the intentions of the Legislature. The Chief Court of the civil jurisdiction for the presidency town was the Supreme Court and its procedure was governed by the Letters Patent of 1824. It was there provided (proviso to para. 11) that a difference of opinion between the Judges should be decided by the casting vote of the Chief Justice. It was not, however, a Court of Appeal. The Chief Court of civil appeal for the Mofussil was the Sadar Diwani Adaulat and its procedure was governed by Regulation II of 1827. It was there provided (S. 9) that a difference of opinion should be decided by the casting vote of the senior Judge. This was subsequently modified by the provision for affirmation on fact and reference on law to a third Judge in Section 332 of the CPC 1859, as amended by S. 23, Act, 23 of 1861.

    18. The Supreme Court and the Sadar Diwani Adaulat were combined to form the present High Court by the Letters Patent of 1862 and this was constituted (Cls. 14 and 115) a Court of Appeal both from the Judges exercising the original civil jurisdiction of the High Court, and from the Civil Courts of the mofussil subject to the High Court. But no provision was made for a difference of opinion between two or more Judges exercising the original civil jurisdiction of the High Court, though this was provided for in the case of Judges exercising the appellate civil jurisdiction of the High Court by the incorporation (Cl. 27) of the procedure prescribed by the Code of Civil Procedure.

    19. This defect was pointed out in para. 23 of the Despatch of the Secretary of State forwarding the Letters Patent of 1862, and it was suggested that a rule should be made for deciding differences of opinion between Judges exercising original civil jurisdiction according to the opinion of the senior Judge. No such rule was, however, made and the matter remained for disposal by the Amended Letters Patent of 1865. The Court was then constituted (Cl. 15) a Court of appeal from one Judge or more differing Judges, whether exercising the original or appellate civil jurisdiction of the High Court. It was also constituted (Cl. 16) a Court of appeal as be fore from the civil Courts of the mofussil subject to the High Court. It was then probided (Cl. 36) that a difference of opinion between two or more Judges should be decided according to the opinion of the senior Judge, whether in the exercise of the original or appellate civil jurisdiction of the High Court. But there was no longer any express incorporation (Cl. 37) of the procedure prescribed by the Code of Civil Procedure.

    20. It appears to me the result was that differences of opinion between two or more Judges had to be decided in all cases according to the opinion of the senior Judge, whether they arose in the exercise of the original civil jurisdiction of the High Court or in the exercise of the appellate civil jurisdiction over other Judges of the High Court or in the exercise of the appellate civil jurisdiction over the civil Courts of the mofussil subject to the High Court. It does not appear whether the rule was ever acted on in the exercise of the original civil jurisdiction.

    21. It would be the appropriate rule to prevent the waste of time and money involved in a retrial, but it would hardly be likely to have been often used as original suits have seldom been heard before more than one Judge of the High Court. It does not appear from the remarks in the case of Surajmal v. Horniman [1918] 47 I.C 449, that it was regarded strictly in the exercise of the appellate civil jurisdiction over other Judges of the High Court, but it was followed in the case of Collector of Ahmedabad v. Samaldas Bechardas (14), decided in 1872, in exercise of the appellate civil jurisdiction over the civil Courts of the mofussil subject to the High Court. It does not appear to me arguable that the rule would not still apply in the exercise of the original civil jurisdiction, because no authority purporting to substitute any other procedure has been produced. But it has been argued that it would no longer, apply in the exercise of the appellate civil jurisdiction over either the other Judges of the High Court or the civil Courts of the mofussil subject to the High Court in view of the recognition of the powers of the Indian Legislature in Cl. 44 of the Amended Letters Patent of 1865 and in view of the provision for affirmation on fact and for reference on law to at third Judges in cause of differences of opinions between Judges of Appeal Courts in Section 575 of the CPC, of 1877 and the provision in S. 632 applying the Code unlike previous Codes to the Chartered High Courts. These provisions have been repeated Page: 9in Sections 575 and 632 of the CPC, of 1882 and in Sections 98 and 117 of the present CPC, of 1908.

    22. It appears to me the rule would, as held in the case of Surajmal v. Horniman [1918] 47 I.C 449, still apply in the exercise of the appellate civil jurisdiction over the other Judges of the High Court. It has already been indicated that this jurisdiction has arisen entirely out of the Letters Patent; while the appellate civil jurisdiction over the civil Courts of the mofussil subject to the High Court has been derived from the provisions of Section 332 of the CPC, of 1859 as amended by S. 23, Act 23 of 1861. These provisions did not apply to the Chartered High Courts but they were repeated verbatim in Ss. 540 and 575 of the subsequent Codes of 1877 and 1882 and in Ss. 96 and 98 of the present Code, which have been applied to the Chartered High Courts. It appears to me to follow that the natural place to find the rules governing the exercise of the appellate civil jurisdiction over the other Judges of the High Court would be the Letters Patent; while the natural place to find the rules governing the exercise of the appellate civil jurisdiction over the civil Courts of the mofussil subject to the High Court would be the Code of Civil Procedure. This natural presumption would appear strengthened by the express reference to civil Courts subordinate to the High Court in S. 584 of the Codes of 1877 and 1882 and in S. 100 of the present Code. This moreover was the view taken in 1882 of the analogous S. 588 of the Codes of 1877 and 1882, now S. 104 of the present Code, in the case of Hurrish Chunder Chowdhry v. Kalisunderi Debi [1183] 9 Cal. 482 , 10 I.A 4 (P.C), where the provisions of S. 588 were held (p. 494) not to apply to appeals from one of the Judges to other Judges of the High Court by their Lordships of the Privy Council. It is true that this view was not taken in 1883 in the case of Gossami Sri Sri Gridhariji Maharaj Tickait v. Purushotum Gossami [1884] 10 Cal. 814 (F.B) by the Full Bench of the Calcutta High Court, but it would appear that Bench was not referred to the decision in the previous year by the Privy Council? It was however accepted in 1898 in the case of Chappan v. Moidin Kutti [1899] 22 Mad. 68 (F.B) by a Full Bench of the Madras High Court and again in 1899 in the case of Toolsee Money Dassee v. Sudevi Dassee [1899] 26 Cal. 361 by a subsequent Full Bench of the Calcutta High Court. It was again followed in 1902 in the case of Sabhapathi Chetti v. Narayanasami Chetti [1902] 25 Mad. 555 by a subsequent Bench of the Madras High Court, where it was pointed out (pp. 558 and 559, of I.L.R 25 Mad.) that appeals were not contemplated from one of the Judges to the other Judges of the High Court but merely from the civil Courts subordinate to the High Court by the appellate provisions of the Code of Civil Procedure as laid down by the Privy Council. This view was again followed in 1903 in the case of Lachman Singh v. Ram Lagan Singh [1904] 26 All. 10 by a Bench of the Allahabad High Court and again in 1905 in the case of Roop Laul v. Lakshmi Doss [1906] 29 Mad. 1 by a third Bench of the Madras High Court. It was finally observed by Sir Lawrence Jenkins, C.J, in 1915 that

    “the Code makes no provision for an appeal within the High. Court, that is to say, from a single Judge of the High Court. This right of appeal depends on Cl. 15 of the Charter” [in the case of Debendra Nath Das v. Bibudhendra Mansingh [1916] 43 Cal. 90 , 33 I.C 745].

    23. These observations would not appear to have been brought to the notice of Sanderson, C.J, later in the same year in the case of Mathura Sundari Dassi v. Haran Chandra Shaha [1916] 43 Cal. 857 , 34 I.C 634. There Woodroffe, J., relied solely on the Charter, though Mookerjee, J., relied both on the Code and the Charter. The Judges differed, therefore in the ratio decidendi and deprived the decision of the authority that would otherwise have attached to it as the latest decision of the Calcutta. High Court it appears to me, therefore upon these considerations and authorities including that of the Privy Council that the civil appellate jurisdiction over civil Court subordinate to the High Court was alone in view when the Code of Civil Procedures were, by S. 632 of the Codes of 1877 and 1882 and by S. 117, of the present Code, made applicable to the Chartered High Courts by the Indian Legislature.

    24. It was held in this particular matter so long ago as 1879 in the case of Appaji Bhivrav v. Shivlal Khubchand [1878-79] 3 Bom. 204 (F.B) by a Full Bench of this Court that the appellate civil jurisdiction over the civil Courts of the mofussil subordinate to the High Court was governed by the provisions of the Code of Civil Procedure, and it would appear that decision has consistently Page: 10been followed ever since by this Court. It was so held similarly in the case of Husaini Begam v. Collector of Muzaffarnagar [1889] 11 All. 176 by the Allahabad High Court, and it would appear to be in accord with the intention as indicated in the other authorities already discussed with which the Code of Civil Procedures were extended to the Chartered High Courts by the Indian Legislature. It has not been argued before us and need not perhaps-be here debated in view of nearly 40 years' unquestioned practice, that the extension was in this particular matter ultra vires of the Indian Legislature. But it has been pointed out by Markby, J., in Feda Hossien, In the matter of the petition of [1875-76] 1 Cal. 431 that special powers such as those granted by Cl. 36, of the Letters Patent, would not, though general powers such as those merely repeated by Cl. 39, of the Letters Patent would, be subject to the legislative powers of the Government of India. His view was that the provisions of Cl. 44, of the Letters Patent merely referred to the powers specially reserved to the Legislative Council of the Government of India by Sections 9, 11 and 13 of the High Courts Act 1861, in derogation of the general limitations of their powers prescribed by Cl. 6, of the proviso to Section 22 of the Indian Councils Act 1861. That view would appear to have been accepted in the subsequent case of Empress v. Burah [1877-78] 3 Cal. 63 (F.B) by the Full Bench of the Calcutta High Court but not to have been brought to the notice of the learned Judges in the latest case of Mathura Sundari Dassi v. Haran Chandra Shaha [1916] 43 Cal. 857 , 34 I.C 634 before the Calcutta High Court. It would appear to me that the views expressed by Markby, J., would require further and particular investigation should further conflict arise between the provisions of the Letters Patent and enactments of the Legislative Council of the Government of India.

    25. (The appeal come on for final hearing before Shah, J., who on 27th October 1918 delivered the following judgment,)

    Shah, J.:— In consequence of the difference, of opinion between Beaman and Heaton, JJ., the following point of law has been referred to me for decision under Section 98 of the CPC:

    “Whether a plaintiff, who has obtained a decree in his favour in the trial Court and gone into possession under it, and has been put out of possession under the decree of the first Court of appeal reversing the trial Court's decree (no claim for restitution having at this stage been preferred against him by the defendant), and who has succeeded in the Court of second appeal which has restored the judgment of the trial Court can claim any benefit under S. 144 in respect of the time he was dispossessed between the decrees of the first and second appeal Courts.”

    26. I am of opinion that the plaintiff can claim such benefit under Section 144 of the CPC. The words of the section are plain and cover the case of the plaintiff claiming the benefit of the section under the circumstances stated in the point of reference. I do not quite follow the significance of the parenthetical clause in the question, viz.,

    “no claim for restitution having at this stage been preferred against the defendant.”

    27. It probably refers to such claim for restitution in the form of compensation under the intermediate decree, as has been mentioned in the judgment of Beaman, J. The defendant however in recovering back the possession under the intermediate decree did make a claim for restitution, though not for restitution by way of compensation. In the view I take of the point it makes no difference whether the defendant did or did not make a claim for restitution in any sense under the intermediate decree. The section provides that 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 as has been reversed: and for this purpose the Court may make any orders, including orders for the payment of damages or compensation, which are properly consequential on such reversal. The words “any party” include a plaintiff and cannot be interpreted as meaning a defendant only. The plaintiff claims to be entitled to a certain benefit in virtue of the decree in second appeal and is entitled to be placed in the position which he would have Occupied but for the decree of the Court of first appeal which was reversed; and on his application the Court may make an order for damages or compensation properly consequential on such reversal suited to the circumstances of the case. I am unable Page: 11to see how the plaintiff's application for damages or compensation can be properly held to be outside the scope of the section, having regard to the words of the section, which are plain, and which I am bound to read in their ordinary and natural sense. It may be that the section includes some cases, which may not be cases of restitution in the ordinary acceptation of the term; and it may be that if the words of the section were not clear, there may be some ground for refusing to treat them as cases of restitution. But where the legislature has adopted a comprehensive phraseology, I do not think its scope could be properly curtailed by reference to any principle, which, though simple and uniform, yields the result that

    “in no case can a plaintiff ask for restitution or any of its concomitant modes under S. 144.”

    28. Contrary to the words of the section. If the legislature intended that S. 144 should not apply to a plaintiff in any case, the words “any party” could not have been appropriately used. It may be that the plaintiff, who has obtained a decree in his favour for the first time in second appeal or after having obtained it in either of the lower Courts has not proceeded to execute it, may not be able to take advantage of S. 144. But that is no ground in my opinion for holding that the plaintiff, who has obtained possession in execution of the decree of the trial Court and is subsequently dispossessed under the decree of the District Court, cannot claim the benefit of S. 144, if finally the decree of the District Court is reversed, and it is found that his dispossession under it was not justified.

    29. It is contended by Mr. Abhyankar for the defendant, first, that when the plaintiff finally obtains a decree in his favour, he can execute it under S. 47 and that to such a case S. 144 has no direct and natural application; and secondly that when the plaintiff obtains the final decree, it is open to him to ask the final Court of appeal to make proper provision in the decree for such relief as he may be entitled to by way of interest, damages or compensation in consequence of an erroneous decree of the lower Court, and that it is an additional ground for holding that S. 144 is not intended to apply to the case of a plaintiff, who can get the necessary relief by the terms of the decree and by execution Code of Civil Procedure.

    30. I do not think that these considerations can justify the conclusion that S. 144 cannot apply to a plaintiff at all. It may be that to a large extent the plaintiff may be able to secure the relief given him by the final decree by an application under S. 47. But the circumstance that within certain limits the ground covered by Sections 47 and 144 is common as regards a plaintiff binder certain circumstances, affords no basis for holding that there can be no ground open to the plaintiff under S. 144 which is not covered by S. 47 of the Code.

    31. As regards the contention that as the relief may be given by the decree it cannot be claimed under S. 144, I think it must be disallowed. It may be possible in some cases for the Court in second appeal to make provision for such relief as the plaintiff claims in the present proceedings. But it is possible that in many cases, whether the provision is to be made for the benefit of the plaintiff or the defendant, the Court may not make any such provision for various reasons. At the time of passing the decree the Court is chiefly concerned with the adjustment of the rights of the parties without any reference to the rights arising in consequence of the change of possession during the pendency of the litigation under the decree, under appeal; and it may not be possible always for the Court to determine matters which are properly determinable under S. 144. Thus the absence of any such provision in the decree is not necessarily a ground for refusing the relief under S. 144. It may be that where the Court, while passing the decree, has averted to any particular point covered by S. 144 and refused to grant relief on that point, any application under that section for the same relief will be refused. But such a refusal would be based on a different ground altogether; and the absence of any relief on the point, which it may be possible to provide for but has not been in fact provided for in the decree, is not a ground for holding that S. 144 cannot apply to the case of a plaintiff. The plaintiff, in my opinion, is entitled to apply, and when the application comes to be considered on its merits, it will be open to the defendant to establish, if he can, that the particular relief which the Page: 12plaintiff claims is definitely refused by the Court passing the final decree.

    32. On these grounds I hold that the application of the plaintiff for an order for the payment of damages or compensation from the date of dispossession under the decree of the District Court until the date of the restoration of that possession under the decree in second appeal reversing the decree of the District Court is clearly within the scope of S. 144. I have nothing to do at this stage with the merits of the claim, and express no opinion whatever thereon. It will be for the lower Court to determine whether under the circumstances the plaintiff has made out any case for an order for the payment of clamages or compensation properly consequential on the reversal of the decree. I agree with Heaton, J., that this appeal should be allowed. The result of allowing the appeal is that the orders of the lower Courts are set aside and the application is remanded for disposal by the Court of first instance according to law. Costs to be costs in the application.

    33. The consequential order, which I make is not stated in terms in the judgment of Heaton, J., and there is no rule as to the procedure to be followed when the decision of the point referred to a Judge under S. 98 is not sufficient by itself to dispose of the appeal completely but when some further order becomes necessary for the proper disposal of the appeal. The practice under the Code of 1882 cannot afford any assistance, as under the old S. 575 the appeal, and not only the point of law, was to be decided by the Judge or Judges to whom the reference was made. Under these circumstances, as the order is consequential, I have consulted Heaton, J., about it, and he agrees that is the order which he would have made if he had been able to dispose of the appeal.

    34. This case illustrates the desirability of making definite rules regulating such references.

    G.P/R.K

    35. Appeal allowed.

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    Bhuta Jayatsingh v. Lakadu Dhansing .
    (Sep 23, 1918)