MAHJIBHAI MOHANBHAI BAROT versus PATEL MANIBHAI GOKALBHAI & ORS.

Citation: [1965] 2 S.C.R. 436 · Decided: 11-12-1964 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Dismissed
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Judgment (excerpt)

MAHJIBHAI MOHANBHAI BAROT 
,. 
PATEL MANIBHAI GOKALBHAI A ORS. 
December 11, 1964 
[A. K. SAU:All, K. SUBBA RAO, RAGHUBil DAYAL, 
N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLIWl, JJ.] 
Code of Civil Procedure (Act 5 of 1908) •· 144-Applkatlon 111..Ur-
If execution application. 
Limilalion Act (9 of 1908), Arts. 181 and l82:;;-Scop1 of, 
The appellant filed a suit for recovery of certain properties from the 
respondenta. 
The suit was d<creed by the trial courL The niopondlW.1 
appealed to the High Court, but pending the appeal, the appellant, in 
execution of the decree of the trial court, obtained possession of tbe suit 
properties and recovered the costa awarded. 
Only July 13, 19'49, the· 
High Court set aside the decree of the trial court, and on August 24, 
1950, the appellate decree was amended by deleting the name of one of 
the decree-holders from the decree. The respondents filed two applications 
one ·on February 11, 1953 for costa and the other on February 13, 
1~3 
for restitution of the properties and =ta paid, under s. 144 of the Chi! 
Procedure Code, 1908. The trial court ordered execution to proceed and 
on appeal the .High Court confirmed the order. 
In the appeal to the 
Supreme Court, it was contended that : (i) the application for recovery 
of costs was barred by limitation under art. 182 of the Limitation Act, 
1908, as it was filed beyond 3 years from the date of the appellate decree 
and (ii) the application for restitution was oot an application for execution 
and was therefore governed by art. 181 of the Limitation Act; and as the 
period of limitation of 3 years under that article, starta from the date when 
the right to apply accrues the application tor restitution was al!O barred by 
limitation. 
HELD (by Full Court) : (i) The execution application tor the reco-
very of costs was within time. [439 E; 455 H] 
By the amendment of August 24, 1950, the name of one of the 
decree-holders was struck out from the decree- and the rmult wu, to that 
exient, the rights of the parties were modified by the amended decree. It 
was therefore, a case where the decree has been amended within the mean-
ing of art. 182(4) of the Limitation Act, and the application for execution 
could be filed within 3 years from the date of the amendment. 
[45~ G] 
(ii) (Per Subba Rao, Raghubar Dayal, RAjagopala Ayyangar and 
Mudholkar JJ.) : On a fair construction ot the provisions ot s. 144 of the 
Code, an application for restitution must be held to be one tor eucotion 
of a decree, and having been filed within 3 yean from the daw of the 
amended decree wu within time. 
[4SS B, HJ 
Having regard to the Imtory of the section, there ia no reMOn why 
such an application should not be treated as one for execution of the f>pe-
llate decree. The object of tbe section ia to make the scope of restitutlOn 
clear and unambiguous. It does not say that an application for restitution, 
which till the Code of 1908 was enacted was an application for execution, 
should be treated as an original petition. Whether an application ·ja one 
for execution of a decree or in an original apPlication depends upon 
the nature of the application and the relief asked for. When a party, •rho 
loot his property in execution of a decree, seeks to recover it back by 
A 
B 
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G 
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A 
B 
c 
MAHJIBHAI )I, MANIBHAI (Sarkar, J.) 
437 
I 
reason of the appellate decree in his favour, he is not initiatina any 
original proceeding but is com:emed OD!y with the working out of the 
appellate decree in his favour. [450 E-H; 451 Al 
It would be inconsistent to hold that an application for restitution would 
be an oriainal petition, if the appellate decree did not pve a direction for 
restitution, and that it would be an execution application if it did. Such 
an inconsisteocy could be a.-oided if a direction for restitution were 
implied in every appellate decree setting aside or modjfying the decree of 
the lower court. [451 C-E] 
The existence of s. 47 in the Code would make •. 144 redundant. 
The latter section was enacted to prescribe the J?rocedure, define the powers 
of the court and expressly bar the maintainability of a suit in respect of a 
relief obtainable under it. [451 E, G] 
· The fact that the section has been placed in the "Miscellaneous" Pan 
of the Code lor conveniel)ce of arrangement, cannot affect the question 
if in reality the application for restitution is one for execution : at the most 
it is only one of the circumstances relevant to
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