ကာလစည်းကမ်းသတ်ဥပဒေ[ Part Two ]

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ကာလစည်းကမ်းသတ်ဥပဒေ[ Part Two ]

တရားမမှုများတွင်တရားလိုဘက်ကိုဒုက္ခအများဆုံးပေးသည့်ဥပဒေမှာ၊ကာလစည်းကမ်းသတ်ဥပဒေဖြစ်သည်။

ကာလစည်းကမ်းသတ်အရအမှုစွဲဆိုခြင်းကိုပိတ်ပင်ထားခြင်းမှာ၊တရားလိုဘက်ကိုနစ်နာစေ၍မမျှတဟုအချို့ကသဘောရရှိကြသည်။

Parmeshwar Singh v. Sitaldin Dube

Allahabad High Court

Feb 22, 1934

CASE NO.Second Appeal No. 868 of 1932 from a decree of J.N Mushran, Additional District Judge of Benares, reversing a decree of Sarup Narain, Subordinate Judge of Jaunpur

ADVOCATES

Mr. D.P Malaviya, for the appellants.

Messrs Mushtaq Ahmad and Ambika Prasad Dube, for the respondents.

JUDGES. Sir Shah Muhammad Sulaiman, C.J, Sir Lal Gopal Mukerji, King, JJ.

 ACTS. Article 179, Limitation Act of 1877. The Civil Procedure Code of 1882, and the Limitation Act of 1877, Section 181 of the Schedule. 42. Now, the provisions in Article 182. Schedule 1, Limitation Act, Section 144 of the present Code, with Section 583 of the Code of 1882., Article 182 of the first schedule to the Limitation Act., Acts the Civil Procedure Code, and the Limitation Act., Civil Procedure Code, and the new Limitation Act, Civil Procedure Code, and of the Limitation Act, Article 183 or by Section 48, Civil P.C. 1908. 37., SCHEDULE 1 LIMITATION ACT 1908, Article 182, Limitation Act, and that Article, Civil Procedure Code of 1908, in Section 144, Article 182, and Section 6, Limitation Act, Civil Procedure Code the Limitation Act, Section 583, Civil P.C., and provision, Article 181 of the Limitation Act., provisions in Order 21, Civil P.C., Section 144 of the Code of 1908, Section 583 of the Code of 1882, Sections 583 and 244, Civil P.C., Sections 47 and 144, Civil P.C., Section 583, Civil P.C. of 1892, Section 583, Civil P.C. of 1882, Section 144 with Section 47, Section 6 or in Article 182, Article 181, Limitation Act, Article 182, Limitation Act, Article 183, Limitation Act., Article 97, Limitation Act., SECTION 6 LIMITATION ACT, Section 144, Civil P.C., Section 583, Civil P.C., Section 47, Civil P.C., Order 21, Rule 11, Rule 11(g)

ပရီဗွီကောင်စီအမှုတွင်၊ကာလစည်းကမ်းသတ်ဥပဒေအရစွဲဆိုသောအမှုများနှင့်တင်သွင်းသောလျှောက်လွှာများသည်၊စည်းကမ်းသတ်ကာလအတွင်းကျရောက်ခြင်းရှိ၊မရှိတရားရုံးများကစိစစ်ရန်တာဝန်ရှိသည်ဖြစ်ရာ၊မည်သူသာသည်၊နာသည်ကိုထည့်သွင်းစဉ်းစားခြင်းမပြုဘဲ၊ဥပဒေပါပြဌာန်းချက်များအတိုင်းအမှုများကိုအဆုံးအဖြတ်ပေးရန်တာဝန်ရှိကြောင်းအောက်ပါအတိုင်းထုံးဖွဲ့မြွက်ဆိုသည်-

PARMESHWAR SINGH V. SITALDIN DUBE

41. It is very significant indeed that the several words relating to execution of decrees have been removed. The question is were they removed because the Legislature were satisfied that the proceedings could not be proceedings in execution, or because they were satisfied that those words were unnecessary. In my opinion, the latter view is the correct one. As I have stated, in an earlier part of this judgment, execution is execution and restitution is restitution; execution is not restitution and restitution is not execution. Although there is no substantial difference in the way in which a Court has to proceed either for execution or for restitution, the language of Section 583 had to be recast and, in my opinion has been properly recast. It has been pointed out that when the appellate Court reverses or varies the decree of the lower appellate Court, the parties should be put in their original position. It is not necessary for the purposes of Section 144 to say that the proceedings were analogous to an execution of a decree or order in the execution department. That position, in my opinion, followed from the nature of the proceedings, and express words were not necessary. In fact, use of the word "execution" with the word "restitution" was likely to confuse things rather than improve them. The object of the Legislature was that suits should be prohibited as far as possible where relief could be obtained in the execution department. This was not provided for in Section 583, Civil P.C., and provision to that effect was made in section 144 of the present act. Lest it should be feared that suits being prohibited and appeals being not allowed parties would suffer, it was provided in the definition of a decree that orders passed under Section 144 stood in the same position as orders passed under Section 47, Civil P.C., and both ware included in the definition of a decree. Let me now consider the position from the point of view of limitation. As I have already pointed out, Section 583, Civil P.C. expressly said that the proceeding was to be by way of execution. Accordingly with probably one exception all the High Courts held that proceedings by way of restitution were proceedings for execution within the meaning Article 179, Limitation Act of 1877. The Civil Procedure Code of 1882, and the Limitation Act of 1877 were re enacted in 1908 and with substantial changes. It is important to bear in mind that with the amendment of the Civil Procedure Code the Limitation Act was amended, so that the two might correspond to each other. It was urged at the Bar that the Legislature deliberately changed the nature of the application for restitution, and it is no longer a matter in the execution department. If that was the case, one would expect that the Limitation Act made some indication of that view, We find there is no specific provision whatsoever for an application for restitution. We are told that it was a new method of procedure adopted by the Legislature, and it is not covered by the present Article 182, Schedule 1, Limitation Act of 1908. I do not think that the Legislature could have ignored an important matter like restitution by not providing for it at all and by leaving it to be classed among those unnamed applications, which fall under Section 181 of the Schedule.

42. Now, the provisions in Article 182. Schedule 1, Limitation Act, indicate a good deal of anxiety on the part of the Legislature to safeguard the interests of the decree-holder. He is given numerous dates from which limitation is to run for the purposes of his application. They are numbered as 7, but really they are much more than 7 in number. The decree-holder is allowed to execute his decree within three years from the date of the decree; then he is allowed to take out execution within three years of the appellate decree or the final order passed by the highest appellate Court, and so on. The successful party in the Court of appeal is no less a decree-holder than the party who lost in that Court. His decree is more valuable than the decree which was pronounced to be wrong by the lower appellate Court. Yet we are told that the Legislature removed an application for restitution from Article 182 and yet made no provision for it, or it deliberately said that the three years' rule under Article 181 should apply. Now, what is the position? The position is that the successful party, the successful decree-holder, has, but a doubtful success. He has but one chance for his application. As I shall show later on Article 181 applying, the successful party's right to apply for restitution accrues when the lower appellate Court grants him a decree. If he does not apply within three years of that date, he cannot take advantage of a second appeal that may be heard and decided in his favour. Now, what is the fault of this party who has succeeded in the lower appellate Court, but has failed, to his misfortune, in the first Court? Was this unjust rule of limitation enacted deliberately or was this a mere omission? I cannot call it an omission, because the Legislature has taken care to put Section 144 with Section 47 in the definition of the decree. It was not negligent of the fact that there existed such a section as 144 in the Code. Then again let us look at Section 6, Lim. Act, as it allows a certain privilege to a minor. He can bring his suit or make his application for execution within a certain time which is not allowed to a mere adult. If an application for restitution be not covered by the words "application for execution" in Section 6 or in Article 182, then a minor is simply undone, although he cannot protect himself. It was argued at the Bar that this apparent conflict may have been due to pure inadvertence on the part of the Legislature. But why should we assume an inadvertence on the part of the Legislature if we can and may, without any effort, reconcile the two Acts the Civil Procedure Code, and the Limitation Act and hold that an application for restitution is as much an application for execution as an application for execution strictly so called. For the reasons given above, I would hold that Article 182 is applicable to an application for restitution tinder Section 144, Civil P.C. In view of the fact that certain decisions of this Court do not agree with this view, I propose to examine the cases in this Court alone.

43. The earliest case on the point is that of Hanifunissa v. Chunni Lal A.I.R. 1921 All. 321. In this case there is no discussion as to whether Article 181 or 182 should apply. At p. 550 (of 19 ALJ), it was assumed that Article 181 would apply, I do not therefore consider that this case is any real authority on the question we have to answer. The case of Jiwa Ram v. Nand Ram A.I.R. 1922 All. 223, discusses the whole question and has surely been very helpful to me in arriving at my own conclusions. I may only say with all respect that this is a subject on which various views have been taken, and the views taken by the learned Judges in that case could very well be taken, but it is my misfortune not to be able to agree with them.

44. The next case is that of Brij Lal v. Damodar Das A.I.R. 1922 All. 238. This is a case in which the question was that rule of limitation would apply to an application for restitution which had to be made in view of the reversal by their Lordships of the Privy Council of the decree passed in India. There were the Articles 181, 182 and 183, to choose from. Their Lordships chose Article 183. That Article is slightly different from Article 182. Article 182 deals with an application for the execution of a decree; while Article 183 deals with an application to "enforce," a judgment, etc., of His Majesty in Council. There is not much difference between the words "execution of a decree and ' enforcement of a decree." To a layman the two words would mean the same thing. Yet their Lordships held that to obtain restitution under the Privy Council judgment, Article 183, which gives the large period of 12 years, should be applied. With all respect, this was the correct view to take. If the ultimate order were passed in India, I should have said, as I am saying now, that Article 182 would have applied. Now, in dealing with this case, at p. 460, the nature of the application for restitution was described as being in the "nature of execution proceeding." I do not want to make much of this statement; but the fact remains that two learned Judges were inclined to take the same opinion as I have expressed. The next case is that of Baijnath Das v. Balmakund A.I.R. 1925 All. 137. In this case the only question for determination was whether the notification of the Government of India which remits court-fee in an appeal against an order passed under Section 47, Civil P.C. included an appeal against an order passed under Section 144, Civil P.C. This being the only point for determination, much of the remarks made there have no direct bearing on the question before me. Lastly I have to refer to the case of Dhapo v. Bakridi A.I.R. 1932 All. 609, to which I was a party. In that case the question whether Article 181 or 182 applied was not discussed. There are, but two short sentences on the point in the judgment, and they say that the law in this Court was to the effect that Article 181 was to be applied. To quote the actual sentences, they are as follows:

To this application of Bakridi Article 181 applies. This is the view taken in this Court.

45. Apparently the question was not discussed and it was accepted by both the learned Counsel for the parties and the Judges that the previous law laid down in this Court should be accepted. If however my judgment in the aforesaid case be considered to be a pronouncement of my own, I am prepared entirely to change my opinion, because I have had the advantage of hearing elaborate arguments at the Bar in this case. In the view taken above, the application of the respondents would be amply within time. The next question is, supposing that Article 181, Limitation Act, applies, whether the limitation starts from the date of the first Court's judgment or from the date of the judgment of the lower appellate Court. So far as this point is concerned, the decision in Dhapo v. Bakridi A.I.R. 1932 All. 609, does contain a considered opinion of myself and my brother Bennet, J. The judgment indicates that the discussion at the Bar was not very extensive and two important decisions of two High Courts were placed before us, and we were guided by our own independent opinion and also by the decision of the Calcutta High Court in Hari Mohan Dalai v. Parmeshwar Sahu A.I.R. 1928 Cal. 646.

46. I have had the advantage of hearing very elaborate arguments at the Bar in the present case, and I have come to the conclusion that the decision of the first appellate Court should be the starting point of limitation, as held in the case just quoted. The law in India allows a successful party in the Court of first instance to execute the decree, even if an appeal may have been filed against it. Similarly the law allows the party, who had succeeded in the first appellate Court, to take out immediate execution without waiting for the decision of any second appeal that may have been filed in the High Court. This being the state of the law, it should follow that when the first appellate Court reverses or modifies the decree of the first Court, the party successful in the first appellate Court is entitled to take out execution. His right to take out execution, and therefore to apply for restitution would accrue within the meaning of the third column of Article 181 when the first appellate Court pronounces its decree. As a matter of fact, this is what has happened in this case. The defendants, who were successful before the District Judge, applied for execution and obtained delivery of possession on 5th October 1926. There was no bar to the defendants proceeding under Section 144 and they did proceed.

47. Now the question is if the "right to apply" accrued to the defendants (present respondents) on pronouncement of judgment by the first appellate Court, can it be said that any fresh right to apply accrued to the defendants when the second appeal was decided by this Court on 13th June 1929? There is nothing in Article 181 itself to suggest that a fresh date for start of limitation would be conceded to the defendants. The argument at the Bar however was that it is the final decree that is the principal decree in the case, and it is that decree alone which can be executed. There can be no doubt that the proposition is true but only so far as it goes. We are not considering whether the final decree is not the decree which finally defines the rights of the parties; but the fact remains that it was open to the defendants to apply for restitution on an. earlier date and, unless the law postpones that right or gives a fresh right, the limitation must begin to run from the date when the right to apply first accrues.

48. The Lordships of the Privy Council in the case of Lasa Din v. Gulab Kunwar A.I.R. 1932 P.C. 207, made certain observations which, in my opinion, are very relevant to the present case. Their Lordships no doubt had to construe a certain bond and to find what would be the date for start of limitation for the purposes of a suit on that bond. Their Lordships again had to construe Article 132, according to which the starting point of limitation is "when the money sued for becomes due." It appears that in this Court the view had been, taken that, when in terms of a mortgage bond money becomes due on the first occasion, the limitation must start from that occasion, and if under any other provision of the same bond money also became due at a later date, that date did not count at all. Their Lordships while dealing with this view of this Court remarked that the language of the Act that had to be construed was not like this vizc: "When the cause of action arose." That is the language which is used in the English statute of limitation, and it uniformly gives six years' period of limitation from the date when the cause of action arises. It will be well to quote the actual language of their Lordships. Their Lordships referred to an English decision and remarked that it is, they think, always dangerous to apply English decisions to the construction of an Indian Act.

49. Having said so, their Lordships continued:

The clause there under consideration differed widely from that now before their Lordships and indeed from the clauses with which the Allahabad Court had to deal; the question for decision would have fallen in India, not under Article 132, but under Article 75, which is in very special terms; and Section 3 of the Statute of James, with which the Court was concerned, made the time to run, not from the date when the money became due, but from the date when the cause of action arose. If in the Indian Oases the question were when did the mortgagee's cause of action arise?' i.e., when did he first become entitled to sue for the relief claimed by his suit their Lordships think that there might be much to be said in support of the Allahabad decisions.

50. It appears from this quotation that where the starting point of limitation is "when the cause of action arose," it is the first accrual of the cause of action that counts, and not any subsequent accrual. In Article 181, Col. 3 the date for starting limitation is "when the right to apply accrues." This expression in my opinion, is very similar to the expression "when the cause of action arose," and in view of the pronouncement of their Lordships already quoted, it is the first date of the accrual of the right to apply that would matter and therefore the date of the decision of the first appellate Court and the date of the decision of the High Court. In this view, an application for restitution would ordinarily be beyond time if made more than three years after the accrual of the right to apply. In this particular case however the application was not for delivery of possession, but for assessment of mesne profits. Now, mesne profits can be assessed only after delivery of possession has been made in favour of the applicant. Prior to that no body could say when the possession would be delivered and upto what date mesne profits would have to be calculated. This view was expressed by mysalf sitting with my brother Bennet, J., in Dhapo v. Bakridi A.I.R. 1932 All. 609, quoted above. The delivery of possession in this case took place in favour of the defendants on 5th October 1926, and the present application having been made on 2nd September 1929, was amply within time. As regards the amount, I have already pointed out that the figure arrived at by consent of parties must be accepted in second appeal under the circumstances already described. In the result, I also agree in dismissing the appeal with costs.

King, J.

51. The first question for consideration is whether an application for restitution under Section 144, Civil P.C. is an application "for the execution of a decree" within the meaning of Article 182 of the first schedule to the Limitation Act. It is conceded on behalf of the respondents that if this question be answered in the negative then the period of Limitation for an application for restitution must be governed by the residuary Article 181 of the Limitation Act. There has been a great divergence of judicial opinion on this question, but I think it is unnecessary to discuss all the conflicting rulings. If the case were one of first impression to be decided merely upon an interpretation of the language of the Civil Procedure Code, and of the Limitation Act, I should be inclined to hold that an application for restitution is not an application for the execution of a decree. Under the Civil Procedure Coda of 1882 it was enacted in Section 583 that when a patty entitled to any benefit (by way of restitution or otherwise) under a decree passed in 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.

52. It seems to be clear therefore that under the Code of 1882, applications for restitution were to be regarded and treated precisely as if they were applications for the execution of decrees. It would seem to follow that the rule of limitation governing applications for the execution of decrees must also govern applications for restitution and this was the view taken by most of the High Courts in India.

53. The language of Section 144 of the Code of 1908, which corresponds to Section 583 of the Code of 1882, has been very substantially altered. All references to the execution of the appellate decree have been omitted. It has been suggested that the words referring to the execution of the decree have been omitted as being superfluous. I am not inclined to accept this explanation. It appears to me that if it bad merely been intended to omit the words as being superfluous there would have been no necessity for such a radical change of the language of the section. Also it cannot be said that the language has been changed in order to make it clear that no sepa-1 rate suit for restitution would be maintainable. If that had been the intention of the Lagislature, then it could have been attained by merely adding the new Sub-section (2) which expressly bars a separate suit for restitution. In my opinion the Legislature by making such a radical change in the language of the section, and by omitting all reference to execution, meant to make it clear that an application for restitution should not be regarded or treated like an application for the execution of a decree. This view derives some support from the fact that the provision relating to restitution (i.e., Section 144), is not included in part 2 or in Order 21, which contain the provisions relating to the execution of decrees, but is included in part 11 under the heading "Miscellaneous." This is an indication that restitution is not to be treated like execution of the appellate decree. There is no doubt that the powers exercisable by a Court under Section 144 differ widely from the powers exercisable by a Court executing a decree. A Court which executes a decree has to carry out the ex. press terms of the decree. There is no necessity for ascertaining the liability of the judgment-debtor by a separate proceeding. In the present case the decree of the lower appellate Court reversed the decree of the trial Court and dismissed the plaintiffs' suit for the possession of certain land, but it did not order that the defendants should recover possession of the land in suit, or that they should receive mesne profits or compensation of any sort far the period of their dispossession. These points were all left for the determination of the trial Court when causing restitution to be made. The powers and discretion granted to the Court in carrying out restitution are very wide and certainly much wider than are exercisable by a Court executing a decree. In my opinion the Court in making restitution is exercising its inherent powers of doing justice and of taking care that the erroneous decree shall not result in causing injury to any of the suitors. It goes much further than merely executing the decree of the appellate Court. It seems to me therefore that there is a real difference and a substantial distinction between executing a decree and making restitution.

54. A similar view was expressed by a Bench of this Court in Jiwa Ram v. Nand Ram A.I.R. 1922 All. 223, and it has been consistently followed without any expression of doubt by successive Benches of this Court. There is certainly much to be said for the opposite view. The Court which carries out restitution does perform certain duties analogous to those performed by a Court which executes a decree and, if a very wide and liberal meaning is given to the words "execution of a decree" they may be held to include giving effect to a decree, and that is what a Court does, in one sense, when it makes restitution under Section 144. In my opinion however this interpretation would involve too much stretching of the language of Article 182. The difference between making restitution and executing a decree should not be ignored. It has also been suggested that the Legislature cannot have intended to alter the law of limitation so as to put the applicant for restitution in a worse position than the applicant for execution. Against this argument it must be observed that even under the Coda of 1882 the Calcutta High Court used to hold that limitation for an application for restitution was not governed by the Article governing an application for the execution of a decree, and the amendments made in the Code of 1908, seem to show that the Legislature intended that view to prevail. If it results in unintended hardship then the Legislature can intervene and make it clear that Article 182, and Section 6, Limitation Act, apply to applications for restitution as well as to applications for the execution of decrees. I see no good reason for dissenting from the view which has been consistently held in this High Court on this point. I would also refer to a Pull Bench ruling of the Patna High Court in Balmakund Marwari v. Basanta Kumari Dasi A.I.R. 1925 Pat. 1. The question was discussed there at length and I respectfully agree with the majority of the learned Judges.

55. I think that the view which has hitherto prevailed in this High Court is correct. On the principle of stare decisis we should not disturb the current of decisions without strong reasons. Judicial authority in other High Courts is divided. There is certainly no clear preponderance of authority in favour of the opposite view and the reasons in support of the opposite view do not seem to be stronger or even as strong. I would therefore answer the first question in the negative. The second question is from what point of time limitation is to run if Article 181 is applicable. On this point I am in agreement with my learned brother Mukerji. It seems to me that when the lower appellate Court dismissed the plaintiffs' suit, the right accrued to the successful defendant-appellants of applying to the Court, which passed the decree for restitution. Certainly the defendants could have applied for restitution to the extent of recovery of possession and compensation for the price of the crops which were on the ground when the plaintiffs took possession under the trial Court's decree, which was superseded. As a matter of fact, the defendants did apply for restitution, to the extent of recovery of possession, soon after the lower appellate Court had passed its decree and did recover possession long be-fore the decree of the High Court dismissing the appeal was passed. It is no doubt true that the decree of the High Court, which confirmed the decree of the lower appellate Court, superseded the latter decree; but I cannot find any authority for the view that the decree of the higher appellate Court could give a fresh starting point for limitation under Article 181. The words in third column of the first Schedule in respect of Article 181, Limitation Act, are when the right to apply accrues" and I think this must be taken to mean "when the right to apply first accrues." It seems to me clear that the right to apply did first accrue when the lower appellate Court passed its decree. I would hold therefore that ordinarily the decree of the lower appellate Court, reversing the decree of the trial Court, would form the starting point of limitation for an application for restitution. In the present case however I agree with Mukerji J., that the starting point of limitation for the application in question in so far as it is for mesne profits during the period of dispossession, is not the date of the lower appellate Court's decree, but the date on which possession was restored to the defendants, that is, 5th October 1926. Until possession had been delivered to the successful defendants, it would be impossible for the trial Court to ascertain what amount of mesne profits should be paid to them for the period of dispossession.

56. In the present case therefore I would take the starting point of limitation for the application for mesne profits to be 5th October 1926, the date of the recovery of possession in consequence of the lower appellate Court's decree. On this view, the application in respect of mesne profits is within time, but the claim for the price of the crop is barred by limitation.

57. An application for restitution under Section 144, Civil P.C. is not an application for the execution of a decree within the meaning of Article 182, Limitation Act, and that Article does not apply to it. It is an application not specifically provided for and is governed by Article 181, Limitation Act. The time for applying begins to run from the date of the lower appellate Court's decree when the first Court's decree was reversed and the right to apply for restitution first accrued. But where the application is for recovery of mesne profits, the time does not begin to run till possession has been restored to the successful party. The appeal is accordingly dismissed with costs.