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Khaja Allawali Judgment-Debtor v. Kesharimal Ramlal And Others Decree-Holders
Analytical Summary of the Provided Opinion
Factual and Procedural Background
The reference to the Bench was made by Pollock, J. The specific question referred was: “Is an application for restitution under Section 144 of the CPC or the principles contained therein governed by Article 181 or Article 182, Limitation Act.”
The reference arose because of conflicting decisions among various High Courts (Calcutta, Allahabad, Lahore on one side; Bombay, Madras, Patna, Rangoon and the Chief Court of Oudh on the other), as well as divergent decisions of the Nagpur Judicial Commissioner's Court and the Nagpur High Court. The Bench therefore approached the question both on broad principles of law and by reviewing the historical development of Section 144 of the Code of Civil Procedure (CPC).
Legal Issues Presented
- Whether an application for restitution under Section 144 of the Code of Civil Procedure is governed, for the purpose of limitation, by Article 181 (the residuary article) of the Limitation Act or by Article 182 (the special article governing execution) of the Limitation Act.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 2 Pat. 101 (quotation at p.16) | Expresses the duty of the Court under Section 144 CPC and inherent jurisdiction to place parties in the position they would have occupied but for the reversed/varied decree. | Used to support the proposition that restitution jurisdiction exists and is grounded in the Court's duty/inherent powers rather than being an execution remedy. |
| (1871) L.R. 3 P.C. 4652 | One of the leading statements that Courts must ensure their acts do not injure suitors; "act of the Court" construed broadly. | Identified as a leading authority supporting the general duty of courts and the restitution concept; relied upon in distinguishing restitution from execution. |
| 10 M.I.A. 2033 (Turner L.J.) | Where judgment remains in force money recovered under it cannot be recovered until decree is reversed; if reversed, refund is due and may be obtained by summary process or new suit. | Explains historical impetus for providing a statutory mechanism for restitution (led to old S.583 in the Code of 1882). |
| 10 Mad. 664 | Held that an application under the old provision would be governed by Article 179 (present Article 182). | Cited as an example of High Court authority favoring Article 182 for restitution-type applications under the earlier law. |
| 8 ALL. 5455 | Held limitation would be governed by Article 178 (present Article 181). | Cited as representing the contrary view (Article 181) taken by the Allahabad High Court under the earlier provision. |
| 20 Mad. 448 | Accepted the Allahabad view (i.e., Article 181). | Presented as supporting Article 181 under earlier debate. |
| Halsbury's Laws of England (quoted, not a case) | Describes English practice: when execution set aside restitution may be ordered; if necessary a writ of restitution may be issued. | Used to show the English background and to explain why the Code was amended to provide for restitution procedures. |
| 41 Bom. 625 (41 Bom. 6257 referenced) | Interpreted as supporting application of Article 182 by construing Article 182 broadly not to exclude restitution applications. | Cited as a decision exemplifying the view that S.144 applications could be regarded as applications in execution. |
| 45 Bom. 1137 (at p.1140) | Held that the application is, in effect, for execution of the appellate decree which entitles the applicant to restitution. | Cited as authority taking the execution/Article 182 approach; court criticizes the underlying basis of that reasoning. |
| 13 Pat. 411 (at p.438) | Full Bench majority view favouring Article 182 on the ground S.144 is amplification of S.583 and did not change essential character. | Noted as an authority that proceeded to apply Article 182; the present court disagrees with that basis. |
| I.L.R. (1937) 1 Cal. 637 | Observed it is by some violence to the language to treat the judgment of reversal as creating an additional executable decree; characterized restitution as implied negative aspect of reversal. | Relied on by the court to support the view that restitution is distinct from execution and Article 181 applies. |
| 60 Cal. 1 | Authority for construing Limitation Act provisions strictly in their grammatical meaning; courts cannot extend or amend them. | Used to support the position that Article 182 cannot be extended by analogy to cover restitution applications under S.144. |
| 57 ALL. 261 (Full Bench) | Held that applications under S.144 are governed by Article 181. | Identified as an authority in favour of the court's conclusion and expressly aligned with it. |
| I.L.R. (1945) Lah. 8 | Lahore High Court view favouring Article 181. | Cited as supporting the court's conclusion that Article 181 governs S.144 applications. |
| I.L.R. (1910) Cal. 486 | Calcutta High Court decision aligning with Article 181 application. | Relied on as consistent authority for Article 181 approach. |
| 3 Pat. 371 | Full Bench decision (context noted) — earlier view that S.144 proceedings were not proceedings in execution. | Mentioned as a decision the court agrees with although that Full Bench view was later reversed in another Patna decision. |
| 18 Pat. 411 | Reversed 3 Pat. 371 (so represents contrary authority). | Noted as a later Patna decision inconsistent with the earlier Full Bench; court references this divergence. |
| 8 Rang. 271 | Earlier Rangoon decision that the court regards as correct (S.144 not proceedings in execution). | Referred to as a correct earlier decision with which the present court agrees. |
| 11 Rang. 275 | Later Rangoon decision dissenting from the earlier view. | Noted as part of the body of conflicting authorities; the court prefers the earlier Rangoon decision. |
| 31 ALL. 651 (Privy Council) | Held that separate suit for mesne profits did not lie; relief could be obtained under Sections 583 and 244 (execution proceedings) — decision involved execution context under the earlier Code. | Cited and analyzed; court holds this case does not support treating S.144 under the 1908 Code as an application in execution. |
| 40 Mad. 780 (at p.782) | Madras High Court view that all restitution cases are covered by Section 47 of the CPC and hence governed by Article 182. | Cited as authority for the Article 182 approach; the present court explains why that view would render S.144 redundant and rejects it. |
| 6 Luck. 448 | Decision mentioned; no detailed discussion of the question in that report per the opinion. | Noted as a case where the question was not discussed; court does not rely on it for principle. |
| 12 Luck. 52 | Decision mentioned; no detailed discussion of the question per the opinion. | Noted similarly as not decisive on the limitation point. |
| 16 Luck. 591 (Chief Court of Oudh) | Expressed that proceedings under Section 144 are not proceedings in execution (in another context). | Referred to as supportive of the court's conclusion that S.144 is not an execution proceeding. |
| 17 N.L.R. 62 | Sir Henry Drake-Brockman J.C. held that an application for restitution is governed by Article 181. | Cited as consistent authority; court notes agreement with this view. |
| 18 N.L.R. 15 | Decision mainly on court-fees; the judge observed that for limitation Article 181 or 182 might not be materially different and concluded in favour of Article 181 for limitation. | Quoted to show that the same judge accepted Article 181 for limitation while acknowledging other consequences for different procedural contexts (e.g., court-fee). |
| I.L.R. (1941) Nag. 662 | Divisional Bench decision noting that the 1908 Code changed the remedy for restitution and undermined the old view based on S.583. | Relied on to support the proposition that the Code of 1908 made a radical change and that past reliance on S.583 is no longer sound law for S.144. |
| 18 N.L.R. 200 | Decision concerned with the starting point of limitation; judge expressed agreement with Article 182 without detailed discussion. | Court records its dissent from any view that this case supports Article 182 for S.144, noting the point of starting date was the real contest there. |
| I.L.R. (1939) Nag. 492 | Followed 18 N.L.R. 200 on the starting point of limitation; the exact Article (181/182) not discussed in depth there. | Noted as not being of much importance on the specific Article question because the precise issue was not decided. |
Court's Reasoning and Analysis
The court's reasoning proceeds in distinct logical steps, grounded in definitions, statutory history and principles of statutory construction as expressed in prior authorities:
- Distinction between restitution and execution: The court begins by defining restitution as restoration to a party, upon variation or reversal of a decree, of what was lost in the execution of that decree. Execution is described as the enforcement of an existing, self-contained decree or order. The court emphasizes that restitution arises from the Court's inherent jurisdiction to repair injury caused by an erroneous decree (actus curiae neminem gravabit) rather than from the decree's own mandate.
- Nature and source of the right: Section 144 CPC does not create the right of restitution; it merely confers the procedure and power for a Court of first instance to determine and effect restitution. By contrast, execution presupposes a valid decree to be enforced. Restitution deals with a decree that has become wholly or partially non-existent due to reversal or variation.
- Jurisdictional allocation: The court stresses that the jurisdiction to cause restitution and decide associated questions lies with the Court of first instance, whereas execution is the province of the court that passed the decree or a court to which the decree has been transferred for execution.
- Historical development (statutory history): The court traces the absence of an express restitution provision in the 1859 Code, the insertion of S.583 in the earlier Code to address restitution in appeals, and the subsequent, deliberate drafting changes in the Code of 1908. In the 1908 Code, restitution provisions were removed from the appeals chapter, S.144 was enacted and placed under a 'Miscellaneous' chapter, and the language of S.583 (which referred to execution of appellate decrees) was omitted. The court reads these legislative choices as indicative of a substantive change in the nature of the remedy.
- Consequence of statutory drafting: Because S.144 empowers the Court of first instance to determine the mode and extent of relief necessary for restitution and to pass an order (which becomes executable if not complied with), the application under S.144 is a petition to obtain such an order. Execution of any subsequently passed S.144 order is governed by the execution provisions of the CPC. Therefore, an S.144 application is not itself an execution application.
- Application of Limitation provisions: Article 182 is a special article governing applications to execute decrees and orders; it presupposes a decree/order in favour of the applicant. The court reasons that Article 182 cannot be read to include S.144 applications without impermissibly extending its plain language by analogy. Article 181, the residuary article, is the proper provision to govern applications under S.144.
- Rejection of counterarguments and anomalies: The court addresses several arguments supporting Article 182 (e.g., that S.144 is merely an amplification of old S.583, or that the practical relief sought is the result of execution of an appellate decree) and identifies anomalies and logical difficulties that arise if S.144 applications are equated with execution applications (for instance, where an appellate decree reverses a lower-court decree wholly in favour of the applicant, the appellate decree may not be an executable decree in the applicant's favour). The court also points to legislative drafting choices (omitting execution language when re-enacting S.144, placing S.144 outside the execution chapter) as indicative of legislative intent that restitution be treated differently.
- Principle of strict construction of limitation statutes: Relying on authority that the Limitation Act must be construed strictly and grammatically, the court holds that considerations of equity cannot justify extending Article 182 to cover S.144 applications where its plain terms do not so provide.
- Survey of case law: The court examined numerous High Court and other decisions and concluded that several authorities support Article 181 (e.g., Allahabad Full Bench, Lahore and Calcutta decisions, certain Lucknow and Oudh decisions, certain Judicial Commissioner's Court decisions), while other decisions (e.g., certain Bombay, Madras, Patna and Rangoon decisions) favour Article 182. The court analyzed the reasoning of opposing decisions and explained why, in its view, the correct legal position is that Article 181 applies.
Holding and Implications
Holding: The court answered the reference by holding that an application for restitution under Section 144 of the CPC, or principles contained therein, is governed by Article 181 and not by Article 182 of the Limitation Act.
Implications
- Direct effect: For limitation purposes, petitions or applications under Section 144 CPC are to be governed by Article 181 (the residuary article) of the Limitation Act. Practically, this affects the period within which such applications must be brought.
- Scope of S.144 vs. execution provisions: The decision underscores that S.144 is a distinct remedy (procedurally designed to obtain an order of restitution from the Court of first instance) and that only if an S.144 order is passed and not complied with will execution provisions (and associated limitation rules for execution) come into play.
- Broader precedent-setting: The opinion resolves conflicting authorities by aligning with those High Courts and prior decisions that treated S.144 applications under Article 181. The opinion explains its reliance on statutory language, legislative history and the strict construction principle for limitation statutes as the basis for this conclusion.
Answer delivered: "Answer accordingly."
OPINION
1. The question referred to the Bench by Pollock, J. is as under:
“Is an application for restitution under Section 144 of the CPC or the principles contained therein governed by Article 181 or Article 182, Limitation Act.”
2. It is clear that the reference was necessitated on account of conflict of opinion on the subject. Broadly speaking, the High Courts of Calcutta, Allahabad and Lahore are of the view that an application for restitution under Section 144 CPC is not an application in execution and is governed for the purposes of limitation by Article 181 while the High Courts of Bombay, Madras, Patna and Rangoon and the Chief Court of Oudh are of the view that such an application is virtually an application in execution and limitation is governed by Article 182, Limitation Act. The decisions of the Nagpur Judicial Commissioner's Court and of the Nagpur High Court are also not harmonious. In spite of this voluminous case law, there are, in our view, very few decisions in which the subject has been discussed elaborately and reasoned very closely. Before entering into the case law on the subject, we propose to approach the question to be answered on broad principles of law and on the historical development of the present Section 144 of the CPC.
3. In the first place, there is an essential difference between restitution and execution. Restitution means in law restoring to the party, on the variation or reversal of a decree what has been lost to him in execution of the decree reversed or varied or in consequence of that decree. Execution, on the other hand, is the enforcement of the direction in the executable decree or order—which are usually supposed to be self-contained — and to give effect to them. The right of restitution is not based on any statute or on the mandates of a Court contained in its decree or order but on the inherent jurisdiction which every Court has, to repair the injury done to a suitor as a result of its wrong action or decision—a principle which is contained in the well-recognized maxim actus curiae neminem gravabit. Their Lordships of the Privy Council in a case reported in 2 Pat. 101 at p. 16 observed thus:
“It is the duty of the Court, under Section 144 of the CPC to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.”
4. In (1871) L.R 3 P.C 4652 which is the leading case in this matter their Lordships observed:
“One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes if the case.”
5. Section 144 of the CPC does not create the right of restitution. It merely confers power and prescribes procedure by which a due relief can be given to the injured party. It gives to the Court of first instance a wide power in the matter of causing restitution and determining all questions connected therewith. The Court executing the decree or order is on the other hand bound to enforce the decree or order as it stands and has no jurisdiction either to question it or to travel beyond the same. In fact execution proceeds on the basis that a valid decree exists which is to be executed while restitution is to be caused because a decree or order which existed and which was executed becomes non-existent wholly or partially.
6. The jurisdiction to cause restitution or to determine all questions in connection therewith lies only with the Court of first instance while the power to execute a decree is either in the Court passing the decree or the Court to which the decree may be transferred for execution.
7. The fact that the two applications are essentially different is also clear from the historical developments of S. 144. In the Code of Civil Procedure of 1859, while there were express provisions for execution of decree or order there was no express provision for causing restitution. The need for such a provision was realized when in a case reported in 10 M.I.A 2033 the Eight Honourable Turner L.J observed as under:
“There is no doubt that, according to the law of this country—and their Lordships see no reason for holding that it is otherwise in India—money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force; but this rule of law rests, as their Lordships apprehended, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and, as their Lordships conceive, is recoverable either by summary process, or by a new suit or action.”
8. It was with a view to bring the Code of Civil Procedure in line with the aforesaid observations of their Lordships that the Code was amended and S. 583 was introduced in a chapter dealing with appeals. The section ran thus:
“When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits.”
9. After the introduction of the aforesaid section in the Code of Civil Procedure, the controversy arose regarding the Article of the Limitation Act by which an application under S. 583 would be governed. In 10 Mad. 664 the learned Judges express the view that the application would be governed by Article 179 (present Article 182), Limitation Act. The; Allahabad High Court however took a different view in 8 ALL. 5455 and held held limitation would be governed by Article 178 (present Article 181), Limitation Act. This view was accepted by the High Court of Madras in 20 Mad. 448.6 This difference of opinion arose in spite of the wording in S. 583, regarding execution of the appellate decree.
10. By 1908 when the present Code of Civil Procedure was enacted it was realised that S. 583 of the old Code was narrow and unsatisfactory and the Legislature thought it necessary to change it radically. It is not unnatural to assume that when drafting the new Code English law on the subject must have been consulted and attempt must have been made to bring the new Code in a line with it. The English law on the subject is as follows:
“Where a wrongful or irregular execution has been set aside, or where a judgment or order has been reversed after execution thereon has taken place, restitution will be made to the successful party. The order setting aside the execution or reversing the judgment or order should provide for this; and if it does, execution may issue upon it in the ordinary course. If the order does not so provide, another order may be made or a writ called a writ of restitution be issued commanding the judgment-creditor to restore the property or pay over the proceeds of sale.” (Halsbury's Laws of England, Edn. 2 Vol. 14, p. 38, para. 69).
11. In the Code of 1908, the Legislature removed the provisions for restitution from the chapter dealing with appeals. Section 144 which differs from old S. 583 was enacted and placed an a chapter headed ‘Miscellaneous’ and a decree as defined under S. 2(2) of the Code was made to include any determination of question or questions falling under Sections 44 and 144 of the CPC. The words in S. 583 relating to the execution of the appellate decree were deliberately omitted from Section 144 of the CPC.
12. It is therefore clear that an application under S. 144, is an application to require the Court of first instance to determine the mode and extent of the relief which should be granted to the injured party entitled to restitution. The section empowers the Court to determine all questions necessary for due restitution and pass an order in that respect. The scope of Section 144 of the CPC, ends when an order which according to English law would be a writ of restitution is passed. If the person ordered to make restitution fails to comply with the order, then that order, being a decree is executable in the same way as any other decree. The matter of executing the order is however beyond the scope of S. 144 and it would be governed by those provisions of the Code of Civil Procedure, which deal with the execution of decrees and orders. If once the correct scope of S. 144 is appreciated, the point of limitation is solved without any difficulty.
13. The point to be answered by us is regarding limitation governing an application under Section 144 of the CPC, and not governing the execution of that order. We are of opinion that the application under S. 144, which is merely to secure an order of restitution is not governed by Article 182 but by the residuary Article 181, Limitation Act.
14. Article 182 is a special Article which governs an application to execute a decree or order. It presupposes therefore the existence of a decree or order in favour of the applicant and an application to execute the same. The decisions which favour the application of Ark 182 are based on two considerations; the first which was relied on in 41 Bom. 6257 and D.B Brahma for the respondents emphasised it, is that the words in Article 182 should not be construed so narrowly as to exclude an application for restitution in consequence of a decree; the other, which is accepted in 45 Bom. 11378 at p. 1140; 13 Pat. 4119 at p. 438 and other cases is that the application is for execution of the appellate decree which entitles the applicant to claim restitution.
15. It is very correctly pointed out in I.L.R (1937) 1 Cal. 637,10 that it is by some violence to the language that we can speak of the judgment of reversal, making by in application an additional decree that the successful party will get from the other side what the latter has got in the meantime by execution of the original decree and restitution is nothing but an implied negative aspect of the decree of reversal.
16. Numerous anomalies arise if it is assumed that the application for restitution is an application for execution of the appellate reversing decree. If the decree by the appellate Court completely reverses the decree of the lower Court in the plaintiff's favour then the appellate decree is not an executable decree at all and if it reverses the lower Court's decree only partially, the operative and executable part of the appellate decree is still in favour of one who is not the person applying for restitution. Thus, in fact, there is no decree or order in favour of the applicant which can be executed at his instance.
17. The provisions of the Limitation Act may be arbitrary. They may sometimes be harsh, and may even be regarded as inequitable. But, as is pointed out by their Lordships of the Privy Council in 60 Cal. 1,11 these provisions have to be construed as they are found in the Act and Courts have no power to add, alter and amend them. Strict grammatical meaning of the words is the only safe guide and equitable considerations are completely out of place. Article 182, as it is found, provides limitation for the execution of a decree or order of a civil Court. The application for restitution is not for the execution of a decree or order but for the benefit or the result which flows from the appellate Court's decree, and this cannot fall within Article 182 unless its scope is extended either by analogy or by addition of words which it is not permissible for any Court to do.
18. There are other reasons as well why an application under Section 144 of the CPC, cannot be regarded an application for execution. If Legislature intended to treat it as an application for execution, there was indeed no point in omitting the words “and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits” while re-enacting S. 141 of the present Code. It was also unnecessary to refer to S. 144 in the definition of a decree in S. 2(2) of the Code. The reference to S. 144 would indeed be redundant as all questions arising in execution can be determined under Section 47 of the CPC. The scheme of the Code may not in itself be a conclusive argument but it helps us to discover the intention of the Legislature. The Code of Civil Procedure of 1908 provides a special chapter for each subject including ‘Execution’ and has further devoted a separate order for detailed provisions on that particular subject. The fact that S. 144 does not find a place in the chapter and the order dealing with “Execution” and is placed in a separate chapter headed as ‘Miscellaneous’ is, in our view, indicative of the fact that the scope of S. 144 is different from one relating to execution of a decree or order.
19. The proceedings contemplated by Section 144 of the CPC are of a preliminary nature taken with a view to pass a just and correct order of restitution and to determine all questions necessary for that purpose. An application under S. 144 of the Code is to move the Court to pass such an order which under S. 2(2) of the Code is a decree and executable as such. An application to pass an executable order or decree cannot in our opinion be an application for execution in itself. Execution is open to the applicant only if his application is allowed and an order under S. 144 passed. No one can possibly apply to execute something which has yet to come into existence.
20. We do not propose to discuss in great detail the voluminous case law on the subject, though we have examined it with care. The view which we have taken accords fully with the view of the Allahabad High Court taken in the Full Bench case in 57 ALL. 2612 and of the Lahore High Court expressed in I.L.R (1945) Lah. 8.13 It also accords with the view of the Calcutta High Court-in I.L.R (1937) 1 Cal. 637 and I.L.R (1910) Cal. 486.14 We agree with the reasoning and the grounds in support of the application of Article 181 Limitation Act and which we therefore need not repeat here. In 16 Luck. 59115 the Chief Court of Oudh has expressed, though in another context, that proceedings on an application under Section 144 of the CPC are not proceedings in execution. We also agree with the Full Bench decision in 3 Pat. 371 though it was reversed by that Court in 18 Pat. 411 and with the view in 8 Rang. 27117 subsequently dissented from in 11 Rang. 275.18
21. The contrary view appears to have been much influenced by what was understood to be the decision of their Lordships of the Privy Council in 31 ALL. 651.19 In this case a house belonging to a judgment-debtor was put to auction in execution of a decree and purchased by the decree-holder himself. The decree was reversed in appeal and the judgment-debtor was restored back to the possession of the house-He thereupon filed a separate suit for mesne profits and interest. Their Lordships held that a separate suit did not lie, and the relief could be obtained under Sections 583 and 244 of the CPC in execution proceedings. The only substantial part of the decision was that a separate suit did not lie and their Lordships merely pointed out bow the same relief, could be obtained without definitely deciding whether it could be obtained under S. 583 or under S. 244 of the Code. The reference to execution proceedings was made because S. 244 of the Code (corresponding to S. 47 of the Code of 1908) was mentioned and because even under S. 583 the proceedings were by way of execution of the appellate decree. This case was not decided in the light of the new Code of 1908 and it does not furnish authority for the proposition that an application under S. 144 is an application in execution.
22. We have already referred to the Bombay decisions, namely 41 Bom. 625 and 45 Bom. 1137 and shown that they proceed on the basis, which in our view, is not a correct basis that the application under Section 144 of the CPC is an application to execute the appellate decree. In the Full Bench decision reported in 13 Pat. 411 the majority view was in favour of the application of Article 182 on the ground that S. 144 is nothing but an amplification of S. 583 in the old Code and it has not affected the essential character of the remedy. In 40 Mad. 78020 at p. 782 their Lordships of the Madras High Court took the view that all cases of restitution are covered by Section 47 of the CPC, and therefore these cases are governed by Article 182. If this, view was correct, then Section 144 of the CPC, and the reference to it in S. 2(2) of the Code was redundant. The decision in 11 Rang. 275 is based mainly on the ground of balance of authority dissenting from the earlier decision of that Court in 8 Rang. 271 which, in our opinion, was the correct decision. There is no discussion of the question in eases reported in 6 Luck. 44821 and 12 Luck. 52.22 We have already referred to the contrary view taken by the Chief Court in 16 Luck. 591. For the reasons already given above we find ourselves unable to agree with the view taken in these cases.
23. All that now remains to consider is the decisions of the Judicial Commissioner's Court and of this Court. In a case reported in 17 N.L.R 62,23 Sir Henry Drake-Brockman, J.C took the view, as we are now taking, that an application for restitution is governed by Article 181, Limitation Act. In a case reported in 18 N.L.R 1524 the same learned Judicial Commissioner, while dealing mainly with a question of court-fees payable on a memorandum of appeal against an order under Section 144 of the CPC, observed thus:
“It is true that S. 144 omits all reference to execution and that the position of the section as compared with that of the corresponding one (No. 583) in the Code of 1882 has been changed, so that it seems no longer possible to hold that application for restitution is one for execution of the appellate decree which forms its basis. Nonetheless, to use the language employed in the latest of the Madras cases 40 Mad. 780 the party seeking the aid of the Court is agitating a question relating to the execution of the decree under which the other party deprived him of his property.
Whether Article 181 or Article 182 of the Limitation Schedule applies to an application for restitution under Section 144 of the CPC is not really material. In favour of applying Article 181, there is an addition to my own recent decision (above cited) in 3 Pat. L.J 367.25 That conclusion, however, is not really inconsistent with one which treats an application under S. 144 as raising a question which relates to the execution of a decree under which one party was deprived of property by another.”
24. It is clear from the above passage that the learned Judge was still of the view that for the purpose of limitation the application was governed by Article 181, though for determining proper court-fees payable in appeal it should be treated as an application raising a question relating to the execution of a decree. It is pointed out in a recent Divisional Bench case of this Court reported in I.L.R (1941) Nag. 66226 that the case in 18 N.L.R 15 was decided as to court-fee on the strength of the rules then in force—which rules were framed when the Code of 1882 was in force and when under S. 583 the position was different and perhaps justified what might be called the old view. This case is an authority in support of the proposition that the Code of 1908 has made a radical change in the remedy provided for restitution and it is therefore no longer correct to hold that the old view based on S. 583 of the Coda of 1882 is still good in law.
25. In the case reported in 18 N.L.R 20027 the only point in contest was the starting point of limitation and the learned Judge held that limitation started not from the date of remand order but from the date of decree passed after remand. The particular Article by which the application was governed was not directly material though the learned Judge without any discussion expressed his agreement with the view of the first Court that the application was governed by Article 182, Limitation Act. If this case is regarded as an authority in favour of the application of Article 182 we feel bound to express our dissent from that view. This case was followed by this High Court in a case decided by a single Judge and reported in I.L.R (1939) Nag. 49228 so far as the starting point of limitation was concerned, a question with which we are not concerned. It appears from the body of the judgment that the learned Judge proceeded on an assumption that the starting point of limitation was to be fixed under Article 182, Limitation Act. The exact point, whether Article 181 or Article 182 applies was not discussed or decided by the learned Judge and therefore that decision is not of much importance on the point of limitation. In our opinion, the view of this Court generally, if not wholly, supports the view which we take on the subject. On the strength of the foregoing discussion, our opinion is that an application for restitution under Section 144 of the CPC or the principles contained therein is governed by Article 181 and not by Article 182, Limitation Act.
26. Answer accordingly.
Article 181 or Article 182Alert