JUDGMENT
1. This is an appeal against an order of the Subordinate Judge of Aligarh, passed in certain proceedings taken under Section 141 of the Code of Civil Prosedure for the purpose of obtaining restitution.
2. The fasts are as follows;—One Gobardhan Das died in the month of August 1900 leaving two widows, Musammat Rupo and Musammat Singhari.
3. The latter made a waqf of a certain portion of the property which had belonged to her husband, in favour of a temple, and appointed Nand Ram, the respondent in the present appeal, the trustee.
4. After the death of Musammat Singhari, a suit was brought against Nand Ram by the surviving widow, Musammat Rupo, and one Jiwa Ram, who, it was alleged, was her adopted son.
5. This suit was successful and a decree was passed in favour of Musammat Rupo and Jiwa Ram in the month of February 1910 and in execution of this decree Rupo and Jiwa Ram obtained possession of the property on the 4th of May 1910.
6. There was an appeal against this decree; to the High Court, and, ultimately, the decision of the First Court for set aside and the case was remanded for decision on the merits.
7. After the remand the parties agreed to arbitration; and on the 21st of March 1912 the arbitrator delivered an award, upon which a decree was subsequently passed by the Subordinate Judge.
8. The effect of the award was to declare that a portion of the property, once belonging to Gobardhan Das, had been effectively dedicated as waqf. The arbitrator also held that Jiwa Ram had been duly adopted by Musammat Rupo.
9. After this decree was passed Nand Ram on the 20th of April 1913 was put in possession of that portion of the properly which had been found to be validly dedicated to the temple.
10. Nand Ram then applied for the recovery of mesne profits from the 4th of May 1910 till the 20th of April 1913.
11. A preliminary decree was pasted by the Subordinate Judge on the 22nd of December 1914 by which he awarded a sum of Rs. 2,624-5-5 to Nand Ram. This decree was against both Musammat Rupo and Jiwa Ram.
12. An appeal was filed in the Court of the District Judge. He upheld the decision of the First Court so far as the amount was concerned, but he passed an order discharging Jiwa Ram from liability.
13. A second appeal was brought to this Court, and in the result it was held that Musammat Rupo alone was liable for mesne profits from the 4th of May 1910 till the 21st of March 1912. It was further declared that Musammat Rupo and Jiwa Ram were jointly liable for mesne profits from the 22nd of March 1912 to the 20th of April 1913.
14. The High Court directed an enquiry to be held in order that these liabilities might be ascertained. In the order directing investigation nothing was said as to the Court in which the enquiry was to be held. Toe case went down to the District Court and was passed on to the Court of the Subordinate Judge, The Subordinate Judge has now concluded the enquiry and given a decree in which he declares Jiwa Ram and Musammat Rupo jointly liable for a sum of Rs. 708-3-2, while Musammat Rupo is declared to be solely liable for the sum of Rs. 1,691-3-0. It is to be mentioned here that Musammat Rupo died on the 28th of July 1918 while the enquiry in the Court of the Subordinate Judge was still pending.
15. Jiwa Ram now comes here in appeal, and three points have been raised and argued on his behalf. The first point taken is, that the order of the Subordinate Judge is ultra vires inasmuch as he had no jurisdiction to make the enquiry and pass the decree not complained against. It is pointed out that when the order of remand was made by this Court, the case ought to have been taken up by the District Judge against whose decision the appeal had been tiled here.
16. This point has not been pressed, and we may say that, in any case, we should not be disposed to entertain it. It is purely a technical plea, and in view of the circumstances of the case, and, in particular, having regard to the long period during which this dispute between the parties has remained unsettled, we should be very reluctant to interfere on a ground like this. The learned Judge has conducted the enquiry very carefully and has discussed the merits of the case in full detail.
17. The next point taken is, that the order of the Subordinate Judge is bad for the following reasons:
18. It appears that after Nand Ram made an application for restitution under Section 144 of the Code of Civil Procedure, he made a default in appearance. The result of this was that an order was passed dismissing his claim.
19. Subsequently, Nand Ram made an application for restoration. A date was fixed for the hearing of this application and on that date, Nand Ram was again absent and the application for restoration was dismissed for default.
20. Nand Ram made a second application asking that the order of dismissal might be set aside, and, eventually, with the consent of the other side, an order was passed setting aside the order of dismissal and directing that the enquiry should proceed. In the course of those proceedings Jiwa Ram’s Counsel informed the Court that he would not oppose the application for restoration, provided that he were given costs. His statement was that his client had been much harassed by the proceedings and was desirous of having the matter settled once for all. The learned Judge, in setting aside the order of dismissal, awarded coats to Jiwa Ram’s Counsel, and thereupon the case proceeded, and was terminated by the decree which is no w under appeal.
21. The argument for the appellant here is, that in proceedings taken under Section 144 it was not competent for the learned Subordinate Judge to pass any order for restoration. It is argued that the terms of Section 141 of the Code of Civil Procedure, by which it is provided that the procedure laid down in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction, do not apply to proceedings under Section 144 of the Code. The contentions that an application for restitution made under this latter Section is a proceeding in execution of decree and that, consequently, the provisions of Section 141 do not apply.
22. It has, indeed, been laid down by high authority that the provisions of Section 141 do not apply to proceedings relating to the execution of a decree.
23. It appears to up, however, that proceedings under Section 144 of the Code cannot properly be described as proceedings in execution of a decree. We have been referred to tie judgment of the Madras High Court in Somasundoram Piliai v. Chokkalinga Pillai 38 Ind. Cas. 806, 40 M. 780 : 5. L. W. 267, in which it bas been held that proceedings under Section 144 are execution proceedings, but, with all respect, we are unable to agree with this.
24. A comparison of Section 144 of the present Code and Section 583 of the Code of 1882 seems to make the matter clear.
25. Under the old Code it was provided by the Section just mentioned that when a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in appeal desires to obtain execution of the same, he was to apply to the Court which passed the decree against which the appeal was preferred, and it was directed that such Court should proceed to execute the decree pasted in appeal according to the rules prescribed for the execution of decrees in suits.
26. On the language of Section 583 it seems fairly clear that the proceedings for obtaining restitution were, under the old Code, proceedings in execution of decree.
27. The language of Section 144, however, is very different, and we now find no mention regarding any application to be made for the purpose of executing the decree of the Appellate Court, nor do we find any direction laying down that Each proceedings are to be regulated by the rules prescribed for the execution of decrees in suits.
28. The language of Section 144 is very wide, and it is provided that, for the purposes of making restitution the Court may make any, orders including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits which are properly consequential on the variation or reversal which has been made in respect of the first Court’s decree. It may well be doubted whether a Court, which was merely executing a decree, could be deemed to be invested with such extensive powers, for it seems to us that under Section 144 a Court is enabled to pas orders and to make enquiries which might be altogether beyond the scope of the Appellate Court’s decree. Be that as it may, however, we are satisfied that, in view of the difference of the language used in the present Section 144 and the former Section 583, we are justified in coming to the conclusion that proceedings under Section 144 are not proceedings in execution of decree. In this view we hold that the terms of Section 141 do apply to such proceedings, and that, in the present case, it was competent to the learned Subordinate Judge to sat aside the order of dismissal for default and to restore the application.
29. The only other point which has been argued before us is with regard to the form of the lower Court’s decree. We have already mentioned that Musammat Rupo died on the 28th of July 1918 while these proceedings were pending. It is said that after Rupo’s death no formal steps were taken to make Musammat Rupo’s legal representative a party to the record.
30. If there is any legal representative of Musammat Rupo, he can be no other than Jiwa Ram, and it is an admitted fact that at the time Musammat Rupo died, Jiwa Ram was a party to the record. In the circumstances, we are unable to hold that, because there was any omission to take formal steps to have it declared that Jiwa Ram was, for the purpose of these proceedings, the legal representative of Musammat Rupo, the order of the Court below was bad. A further point is taken to which we must now refer. The decree prepared by the Subordinate Judge, on the 10th of July 1919, directs that Rs. 788-3-2 shall be paid by Musammat Rupo and Jiwa Ram jointly, and that a further sum of Rs. 1,691-3-0 was payable by Musammat Rupo alone.
31. Obviously, as the facts stood at the time when the decree was prepared, the form of the decree is wrong for, as we have pointed oat, Musammat Rupo had died about a year before.
32. It is further argued in the circumstances if we hold Jiwa Ram to be the legal representative of Musammat Rupo, we ought also to modify the decree of the Court below so as to make it clear that Jiwa Ram is not personally responsible for the sum of Rs. 1,691-3-O which the decree declares to be payable by Rupo. It is said that we ought to limit the liability of Jiwa Ram in respect of this sum to any assets of Musammat Rupo which have some to his hands.
33. At first sight, this argument appears to be a reasonable one but we have to examine the facts a little more closely. In the first place, it is now absolutely settled that Jiwa Ram was validly adopted by Musammat Rupo to her husband Gobardhan Das. That was declared by the award of the arbitrators and the decree which was passed thereon. If Jiwa Ram has been validly adopted by Gobardhan’s widow, it follows that the title of the, widow was altogether ousted, and Jiwa Ram takes the whole inheritance left by his adoptive father. Further, it is no longer disputed that in March 1910 when possession was taken after Musammat Rupo and Nand Ram had obtained a decree, this possession was delivered both to Jiwa Ram and Musammat Rupo. It follows, therefore, that Jiwa Pam’s possession continued from the 4th of May 1910 till the 20th of April 1913 when Nand Ram was restored to possession of that portion of the property which was found to be waqf.
34. Such being the state of things, we do not see why the liability of Jiwa Ram qua this sum of Rs. 1,691-3-0 should be limited in the manner suggested. He is the adopted son of Gobardhan Das and is the owner of the estate. He represents the estate in its entirely; and in this view of the fasts we think that in the present proceedings Jiwa Ram should also be made liable for the sum of Rs. 1,691-3-0 without any limitation of his liability. In other words, Jiwa Ram’s liability to pay this Sam is not dependant upon any assets which he has taken from Musammat Rupo, if indeed he has taken any assets from her at all.
35. The result, therefore, is that the appallant’s case fails. We dismiss the appeal with costs to respondents including fees in this Court on the higher scale. We direst, however, that the decree be amended so as to make it clear that the total sum awarded is payable by Jiwa Ram, appellant, to the respondent, Nand Ram.
