Ramasamy Reddiar vs Angamuthu and Another

Raju, J.—Plaintiff in O.S.No. 2041 of 1979 on the file of the District Munsif''s Court, Namakkal, who succeeded before the learned trial

Judge, but lost before the learned first appellate Judge, is the appellant in the above second appeal. The suit was filed before the trial Court on

13.11.1979 for recovery of a sum of Rs. 2.997.50 said to be due from the defendants to the plaintiff with subsequent interest.

The case of the plaintiff before the trial Court was that the first respondent herein filed a petition before the Additional Commissioner for

Workmen''s Compensation, Coimbatore, in W.C.No. 203 of 1970 claiming compensation on the ground of personal loss of his earning capacity

on the ground of loss of both hands due to an accident met by him while digging a well of the plaintiff, under the Workmen''s Compensation Act. It

is stated that the plaintiff was awarded a compensation of Rs. 6,720 by the Additional Commissioner for Workmen''s Compensation, Coimbatore,

as against which the plaintiff filed an appeal in CMA.No. 163 of 1973 on the file of this Court. During the pendency of the appeal before this Court

and before the main appeal was finally disposed of on merits, by an interlocutory order, this Court permitted the first respondent herein to

withdraw one-third of the said amount and as a matter of fact, the first respondent - first defendant acting through the second respondent - second

defendant, his wife, has withdrawn a sum of Rs. 2,248 from the amount deposited with the Additional Commissioner for Workmen''s

Compensation, Coimbatore. But, when the main appeal came to be heard and disposed of, this Court by its order dated 19.4.1974, which is

marked as Ex.A-1, set aside the order of the Additional Commissioner for Workmen''s Compensation holding that the plaintiff was not liable for

any sum to the first respondent herein. Thereupon, the plaintiff filed CMP No. 89 of 1971 before this Court for a direction to the first respondent

herein -respondent in the said appeal to pay back the sum of Rs. 2,248 drawn by him or to direct the Additional Commissioner for Workmen''s

Compensation to pay the same to the appellant herein. Sathiadev, J. by his order dated 21st August, 1979 made the following order on the said

application, which has been marked as Ex.A-3 in the present proceedings:

The present petition is taken out for a direction to the respondent to pay back the amount of Rs. 2,248 drawn out by him or to direct the

Additional Commissioner for Workmen''s Compensation to pay the amount to the petitioner. So far as the Additional Commissioner for

Workmen''s Compensation is concerned (not impleaded as a party in this petition), since the amount had already been withdrawn by the

respondent herein, no direction can be issued to him, and even, if it be done, he cannot in turn, put into motion any process for executing the order

for realisation of the amount.

So far as the respondent is concerned, he is bound to return the amount of Rs. 2,248/- in view of C.M.A.No. 163 of 1973 having been allowed

by this Court, and the only remedy open to the petitioner herein is to file a suit on the basis of restitution.

In this view, this petition is dismissed.

Pursuant to the said orders, the suit came to be filed as noticed supra.

In the circumstances, the appellant has included as second defendant, wife of the first defendant, since according to the plaintiff, it was she who

had withdrawn the amount on behalf of the first defendant, who lost both his hands.

The defendants contended that though it is a fact that the first defendant has lost the appeal before this Court, that he withdrew during the

pendency of the appeal a sum of Rs. 2.248 through the second defendant making an application for and on behalf of the first defendant and that

the second defendant is neither a necessary party to the suit nor in any manner personally liable or answerable to the suit claim. It is further

contended that because the first defendant has lost his both hands, she has been managing the family out of the amount drawn from the deposit

made with the Additional Commissioner for Workmen''s Compensation as well as out of the sale proceeds of a house, that the first defendant had

no property whatsoever as on the date of suit and that the suit was also barred by limitation and was also bad for misjoinder of the second

defendant and non-joinder of the Additional Commissioner for Workmen''s Compensation, Coimbatore.

On the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence. The learned trial

Judge by his judgment and decree dated 27.10.1981 decreed the suit as prayed for overruling the contentions and objections raised by the

defendants holding that both the defendants are liable to pay the decreed amount with interest at 6% per annum. Aggrieved, the defendants filed

A.S.No. 91 of 1992 before Sub-Court. Namakkal. The learned Subordinate Judge by his judgment and decree dated 23.6.1983 differed from

the conclusions and findings recorded by the learned trial Judge and dismissed the suit as barred by limitation and so far as the second defendant

was concerned, she was also not personally liable or answerable to the suit claim. On the entitlement of the plaintiff for interest also, the learned

first appellate Judge disagreed with the claim of the plaintiff. Aggrieved, the above second appeal has been filed.

The learned counsel for the appellant, while elaborating the substantial questions of law formulated for consideration at the time of admission,

contended that the judgment and decree of the first appellate Court in so far as it held that the suit was barred by limitation is not correct and is

contrary to law and that the first appellate Court ought to have seen that the since the suit was laid on the basis of Section 72 of the Indian

Contract Act and on the basis of the order passed by this Court in CMA.No. 163 of 1973, the same could not be held to have been barred by

limitation. The learned counsel for the appellant further contended that the suit filed by the appellant-plaintiff was virtually in the nature of a claim for

restitution, consequent upon the order of reversal passed by this Court in CMA.No. 163 of 1973 and the liberties granted in CMP. No. 81 of

1979 and consequently, it should be held that the suit for restitution in substance part took the character of execution proceedings and

consequently, the appellant-plaintiff had 12 years'' period of limitation under Article 136 of the schedule to the Limitation Act, 1963. In support of

his claim, the learned counsel relied upon the decision in Jamanlal v. Ragba, AIR 1922 Nag. 198 wherein it was held that though applications for

restitution may have to be brought u/s 144, yet, they are in substance execution proceedings and as such cognizable by the executing Court. They

also come u/s 47. Civil Procedure Code, and under that section suits can be treated as execution proceedings and proceedings as a suit.

The respondents, though served with notice, have not chosen to enter appearance through any counsel to prosecute the proceedings; nor

anyone on their behalf is present in Court when the matter was heard on 6.11.1996 and today.

I have carefully considered the submissions of the learned counsel for the appellant. The facts narrated above would go to show that though the

first defendant was awarded a compensation of Rs. 6.720 by the competent authority under the Workmen''s Compensation Act, 1923, the said

decision on appeal filed under the very statute before this Court in CMA.No. 163 of 1973 came to be allowed in favour of the appellant herein

and against the first respondent herein. This Court came to the conclusion that the appellant-plaintiff was not answerable or liable to pay any

compensation to the first respondent herein. Equally it is a fact beyond controversy that during the pendency of the appeal, this Court permitted the

first respondent - first defendant, who was respondent in CMA.No. 163 of 1973 to withdraw one-third of the amount lying in deposit with the

Additional Commissioner for Workmen''s Compensation. Coimbatore, pursuant to which the first defendant by making an application through his

wife, the second defendant withdrawn a sum of Rs. 2,248 and after the reversal of the decision when the appellant herein moved CMP.No. 81 of

1979 in CMA.No. 163 of 1973, a learned Judge of this Court has passed an order that the first defendant herein, who was the respondent in

CMA.No. 163 of 1973 was bound to return the amount of Rs. 2.248. in view of CMA.No. 163 of 1973 having been allowed by this Court and

the only remedy open to the petitioner therein - the present appellant/plaintiff was to file a suit on the basis of restitution and the present suit came

to be filed as a consequence thereof.

The learned first appellate Judge while sustaining the claim of the respondents herein was of the view that it is Article 113 of the Schedule to the

Limitation Act, 1963 that would be attracted and the present suit not having been filed within three years from the date on which the right to sue

accrued, which according to the first appellate Court, is on the date of reversal of the order passed by this Court in CMA.No. 163 of 1973, the

suit was barred by limitation.

In the light of the above and having regard to the substantial questions of law formulated at the time of admission of the second appeal, the

following two questions would arise for consideration:

(1) Whether the present suit can be said to have been filed within the period of limitation stipulated therefore and therefore, the suit claim was not

barred by limitation of time? And

(2) Whether the second defendant, wife of the first defendant was personally liable to the claim?

Taking the second question for consideration first, I am of the view that no exception could be taken to the judgment and decree of the learned

first appellate Judge exonerating the second defendant - wife, from any liability to the suit claim. As could be seen from the facts narrated supra, it

is the first defendant - first respondent herein who was the claimant, was awarded the compensation as also the only respondent before this Court

in the appeal filed by the plaintiff - appellant herein in CMP.No. 81 of 1979, in which it was declared that it is for the petitioner therein - the

appellant herein to file a suit on the basis of restitution specifically declaring that it was the respondent therein - first respondent herein who was

bound to return the amount of Rs. 2,248 by way of restitution. In addition thereto, the wife - second respondent was acting for the first respondent

as a representative, since he could not take any proceedings having lost both hands and at no point of time, the second respondent - wife acted in

the matter/on her own and has claimed or withdrawn any sum for herself. Having regard to the above, the second respondent - second defendant

cannot be made liable for the amount or can be made personally answerable to the suit claim. The conclusions so arrived at by the learned first

appellate Judge by differing from the findings of the learned trial Judge are unassailable and the suit must be held to have been rightly dismissed as

against the second defendant.

So far as the claim against the first defendant, who was the claimant before the Additional Commissioner for Workmen''s Compensation is

concerned, there can be no dispute or serious controversy over his liability to pay a sum of Rs. 2,248, which has been withdrawn by him during the

pendency of CMA.No. 163 of 1973. This position has been clarified and declared to be so by the learned single Judge of this Court while

dismissing CMP.No. 81 of 1979. wherein it was held that the respondent therein - first defendant was bound to restore the sum of Rs. 2,248

withdrawn by him, to the appellant therein - plaintiff.

In view of the above, the only question so far as the first defendant - first respondent herein is concerned that would arise for consideration is

the question of limitation as to whether the suit claim is barred by limitation so far as against the first defendant is concerned as held by the learned

first appellate Judge or whether the suit claim is within the period of limitation as held by the learned trial Judge. The Civil Procedure Code, 1882,

for the first time introduced in Section 583 a provision for restitution, by declaring that when a party entitled to any benefit, by way of restitution or

otherwise, under a decree passed in an appeal 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 stipulated for

execution of decrees in suits. It also indicated in sufficiently clear terms that an application for restitution therein was in substance an application for

execution of an appellate decree. At one stage, it was thought that no suit could brought for the relief and restitution proceedings had to be

commenced by an application for execution of the decree and that such proceedings had to be regulated by the rules providing for the execution of

the decrees in suit. Vide: Prog Narain v. Kamakhia Singh, 19 MLJ.599 (PC) . In view of the above, various High Courts also held that such an

application would be governed by Article 179 of Act XV of 1877, corresponding to Article 182 of the Limitation Act, 1908 and Article 136 of

the Limitation Act, 1963. The Civil Procedure Code, 1908 replaced Section 583 of the previous Code by Section 144. While construing the

scope and effect of Section 144 in Jai Berham v. Kedar Nath Marwari, AIR 1922 P.C.269, the Privy Council observed that it is the duty of the

Court u/s 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 and the said duty or jurisdiction was said to arise not merely u/s 144 but was found to be inherent in the general

jurisdiction of the Court to act rightly and fairly according to the circumstances towards all the parties concerned and the principle of the doctrine

of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous

decree to make restitution to the other party for what he has lost and this obligation was said to arise automatically on the reversal or modification

of the decree carrying with it necessarily the right to restitution of all that has been done under the erroneous decree and the Courts were

considered to be bound to restore parties so far as they can be restored, to the same position they were in at the time when the Court by its

erroneous action had displaced them from. As in the earlier Code, the provisions contained in Section 144 also expressly barred a suit in respect

of such a relief, since there was some room for doubts as to whether an application for restitution or an application for execution would lie for the

purpose of Limitation Act, conflicting views were taken by different High Courts. While the High Courts of Madras, Bombay, Rangoon, Patna,

Trivandrum-Cochin and Madhya Pradesh as well as the Chief Court of Oudh had held that an application for restitution was a proceeding in

execution the other High courts of Allahabad, Lahore, Nagpur, Calcutta, the Punjab and Mysore had taken a contra view that such an application

was not one in execution of a decree within the meaning of Article 182 of the Limitation Act of 1908 corresponding to Article 136 of the Limitation

Act, but would be really governed by Article 181 of the Limitation Act, 1908 corresponding to Article 137. The said conflict of opinion has come

to be resolved by the Supreme Court in Mahjibhai Mohanbhai Barot Vs. Patel Manibhai Gokalbhai and Others, . A constitution Bench of the

Apex Court held as follows:

With this background the Legislature in passing the Code of Civil Procedure, 1908, introduced Section 144 therein. The said section is more

comprehensive than Section 583 of the Code of 1882. Section 111 of the present Code does not create any right of restitution. As stated by the

Judicial Committee in Jai Berham v. Kedar Nath Marwari, 19 I.A. 351 : AIR 1922 P.C.269.

It is the duty of the Court u/s 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 to the general

jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.

The section, to avoid the earlier conflict prescribes the procedure, defines the powers of the Court and expressly bars the maintainability of a suit in

respect of a relief obtainable under this section. The Section does not either expressly or by necessary implication change the nature of the

proceedings. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous. It does not say that

an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original

petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the

relief asked for. When a party, who lost his property in execution of a decree seeks to recover the same by means of theappellate decree in his

favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The

application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the

appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree,

prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the

execution of the appellate decree.

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The contention that the determination of a question u/s 144 of the Code is included in the definition of the decree u/s 2(2) of the Code has also no

relevance to the question before us. The said definition takes in both an order u/s 47 and that made u/s 144 of the Code. The said two sections are

included for the purpose of giving a right of appeal. If an execution application to which Section 47 applies does not cease to be an execution

application by reason of the section being included in the definition of ""decree"", an execution application u/s 144 cannot likewise ceased to be one

for the reason that the said Section is included in the definition of ""decree"".

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As we have already indicated, there are strong currents of judicial opinion expressing conflicting views on the construction of Section 144, C.P.C.

The Madras High Court in A. P. R. K. R. V. Vellayan Chetti and Others Vs. Venugopal Chetti and Others, and Venkataraju v. Suryanarayana,

ILR (1943) Mad. 411;- The Bombay High court in Kurgodigouda v. Ningangouda, ILR 41 Bom. 625 and Hamidalli v. Ahamadali ILR 45 Bom.

1137, the Patna High Court in Dhanmath v. Kedarnath, ILR 13 Pat. 411, the Chief Court of Oudh in Chandika v. Bital, ILR 6 Luck. 448; The

Rangun High Court in Muthukaruppau Chettiar v. Annamalai, ILR 11 Rang. 275, the High court of Travancore - Cochin in Kochu vared v.

Mariam, AIR 1952 Trav. Co.40 and the Madhya Pradesh High court in Choudhary Hariram and Others Vs. Pooran Singh, held that an

application u/s 144 CPC. was an application for execution of a decree, while it had been held by the High Court of Allahabad in Parameshwar

Singh v. Sitaddin Dube, ILR 57 All. 26 and other cases, the Calcutta High Court in Saraj Bhushan v. Debendramath, ILR 59 Cal. 337 and

Harimohan Dalai v. Parameshwar Shau, ILR 56 Cal. 61 and other cases, the Nagpur High Court in Khwaja Alawadi v. Kesharimal, ILR 1947

Nag 176 and the Punjab High Court in Melaram v. Dharam Chand Amritlal, ILR 1958 Punj. 407 that it was not an application for execution. We

have gone through the judgments carefully and we have derived great assistance form them. If we are not dealing with each of the cases specifically

it is only because we have practically dealt with all the reasons given by the learned Judges in support of their respective views. We realise that the

opposite construction for which the appellant contended is also a possible one, but it ignores the history of the legislation and the anomalies that it

introduces. On a procedural matter pertaining to execution when a section yields to two conflicting constructions the Court shall adopt a

construction which maintains rather than disturbs the equilibrium in the field of execution. The historical background of Section 144 of the Code of

Civil Procedure, the acceptance of the legal position that an application for restitution is one for execution of a decree by a number of High Courts,

the inevitable adoption of the said legal position by innumerable successful appellants within the jurisdiction of the said High Courts, the possible

deleterious impact of a contrary view on such appellants, while there will be no such effect on similar appellants with in the jurisdiction of the High

Courts which have taken a contrary view, also pursued as to accept the construction that the application for restitution is one for execution a

decree. We, therefore, hold on a fair construction of the provisions of Section 144 of the CPC that an application for restitution is an application

for execution of a decree.

The Apex Court after adverting to the fact that the claim for restitution u/s 144 of the CPC being one in the nature of an application for execution

of decree held that the said application will be governed by Article 182 of the Limitation Act, 1908 corresponding to Article 136 of the Limitation

Act, 1963 and not by Article 181 of the Limitation Act, 1908 corresponding to Article 137 of the Limitation Act, 1963. Consequently, the

conclusion of the learned first appellate Judge holding that the suit was barred by limitation, especially as against the first defendant, is liable to be

set aside.

The second appeal is allowed in so far as the first respondent - first defendant is concerned and shall stand dismissed as against the second

respondent - second defendant. There will be no order as to costs.