Andhra Pradesh High Court - Amravati
Mangali Chinthala Chinna Nagamma ... vs Peddinti on 19 November, 2024
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
CIVIL REVISION PETITION No.4508 of 2011
Between:
1. MANGALI CHINTHALA CHINNA NAGAMMA (DIED) BY L.RS.,
S/O. LINGAIAH R/O. VEERAVARAM POST & VILLAGE & POST,
EAST GODAVARI DISTRICT AND 12 OTHERS.
...PETITIONERS
AND
1. MANGALI CHITALA GIDDAMMA DIED, A.P. INDUSTRIAL
INFRASTRUCTURE CORPORATION LTD., PARISRAMA
BHAVAN, 6TH FLOOR, FATEH MAIDAN ROAD, BASHEERBAGH,
HYDERABAD - 500 004 AND SIX (6) OTHERS.
...RESPONDENT(S).
DATE OF ORDER PRONOUNCED : 19.11.2024
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
___________________________
JUSTICE SUBBA REDDY SATTI
Page 2 of 19
* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
+ CIVIL REVISION PETITION No.4508 of 2011
% 19.11.2024
CIVIL REVISION PETITION No.4508 of 2011:
Between:
1. MANGALI CHINTHALA CHINNA NAGAMMA (DIED) BY L.RS., S/O.
LINGAIAH R/O. VEERAVARAM POST & VILLAGE & POST, EAST
GODAVARI DISTRICT AND 12 OTHERS.
...PETITIONERS
AND
1. MANGALI CHITALA GIDDAMMA DIED, A.P. INDUSTRIAL
INFRASTRUCTURE CORPORATION LTD., PARISRAMA BHAVAN,
6TH FLOOR, FATEH MAIDAN ROAD, BASHEERBAGH,
HYDERABAD - 500 004 AND SIX (6) OTHERS.
...RESPONDENT(S).
! Counsel for Petitioners : Sri C.Prakash Reddy
^ Counsel for Respondents : Sri K.Viswanatham
< Gist:
> Head Note:
? Cases referred:
1) AIR 1982 AP 281
2) 2001 (5) ALD 484
3) (2004) 13 SCC 431
4) Review Petition No.353 of 2023 dated 22.01.2024 of Madhya Pradesh
High Court
5) 2007 (1) LW 391 (Madras High Court)
6) AIR 1988 MADRAS 5
7) ILR 4 PAT 61
8) (2023) 8 Supreme 8
9) 1964 SCC OnLine SC 319 : AIR 1965 SC 1477
This Court made the following:
Page 3 of 19
APHC010099692011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
TUESDAY, THE NINETEENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION NO: 4508/2011
Between:
1. MANGALI CHINTHALA CHINNA NAGAMMA (DIED) BY L.RS.,
S/O. LINGAIAH R/O. VEERAVARAM POST & VILLAGE & POST,
EAST GODAVARI DISTRICT
2. MANGALI SESHAMMA, W/O. MANGALI KAULURU
HOUSEWIFE CHERUKUCHERLA VILLAGE MIDTHUR MANDAL
3. MANGALI BHAGYAMMA, W/O. MANGALI BOOSANNA
HOUSEWIFE CHERUKUCHERLA VILLAGE MIDTHUR MANDAL
4. MANGALI NARAYANA, S/O. MANGALI NAGANNA BUSINESS
PORUMAMILLA VILLAGE
5. MANGALI MANI, S/O. MANGALI NAGANNA EMPLOYEE IN
SOBHA LODGE NANDYAL, KURNOOL DISTRICT
6. MANGALI THIRUPATHAIAH, S/O. MANGALI NAGANNA
BUSINESS PORUMAMILLA VILLAGE
7. MANGALI RAMA DEVI, W/O. NAGABHUSHANAM HOUSEWIFE
E.THANDRAPADU VILLAGE KURNOOL MANDAL AND
DISTRICT
8. MANGALI BUJJANNA, MANGALI BUJJANNA, S/O MANGALI
PULLANNA AGED ABOUT 48 YEARS, CULTIVATION,
HINDU,RESIDENT OF NANDAVARAM VILLAGE,
Page 4 of 19
BANAGANPALLI MANDAL, KURNOOL DISTRICT.
9. MANGALI RAMACHANDRUDU, MANGALI RAMACHANDRUDU,
S/O MANGALI PULLANNA AGED ABOUT 43 YEARS, HINDU,
CULTIVATION, RESIDENT OF NANDAVARAM VILLAGE,
BANAGANPALLI MANDAL, KURNOOL DISTRICT.
10. MANGALI ADINARAYANA, MANGALI ADINARAYANA, S/O
MANGALI PULLANNA AGED ABOUT 40 YEARS, HINDU,
CULTIVATION, RESIDENT OF NANDAVARAM VILLAGE,
BANAGANPALLI MANDAL, KURNOOL DISTRICT.
11. MANGALI SUBRAMANYAM, MANGALI SUBRAMANYAM, S/O
MANGALI PULLANNA AGED ABOUT 38 YEARS, HINDU,
CULTIVATION, RESIDENTS OF NANDAVARAM VILLAGE,
BANAGANPALLI MANDAL, KURNOOL DISTRICT.
12. MANGALI PUSHPAVATHI, MANGALI PUSHPAVATHI, W/O
MANGALI VENKATA SUBBAIAH, AGED ABOUT 34 YEARS,
HOUSEWIFE, R/O SIRIVELLA VILLAGE AND MANDAL,
KURNOOL DISTRICT.
13. MANGALI LEELAVATHI, MANGALI LEELAVATHI, W/O
MANGALI VISWANATH. AGED ABOUT 32 YEARS,
HOUSEWIFE. YELLOTHULLA VILLAGE, SIRIVELLA MANDAL,
KURNOOL DISTRICT.
...PETITIONER(S)
AND
1. MANGALI CHITALA GIDDAMMA DIED, A.P. INDUSTRIAL
INFRASTRUCTURE CORPORATION LTD., PARISRAMA
BHAVAN, 6TH FLOOR, FATEH MAIDAN ROAD, BASHEERBAGH,
HYDERABAD - 500 004.
2. KOTRIGA MALLAIAH DIED, INDUSTRIAL INFRASTRUCTURE
CORPORATION LIMITED INDUSTRIAL ESTATE, RENIGUNTA
ROAD, SETTIPALLI (P.O.), TIRUPATHI- 517 506, CHITTOOR
DIST., A.P.
Page 5 of 19
3. MANGALI CHECHAMMA, W/O. MANGALA SOMANNA
HOUSEWIFE VEEPANAGANDLA VILLAGE MIDTHUR MANDAL,
KURNOOL DISTRICT
4. RAJULA VENKATASWAMY, S/O. PAKKIRAIAHA CULTIVATION
R/O. CHERUKUCHERLA VILLAGE MIDTHUR MANDAL,
KURNOOL DISTRICT
5. MANGALI RAMALAKSHMAMMA DIED, W/O. SUBBANNA
6. MANGALI JAYALAKSHMAMMA, W/O. ONNURAPPA
HOUSEWIFE H.NO. 45/369/1 MOULALI RAILWAY QUARTERS
PRASHANTH NAGAR SECUNDERABAD
7. MANGALI KALABASHINI, W/O. GOVINDU HOUSEWIFE R/O.
GANI VILLAGE GADIVEMULA MANDAL KURNOOL DISTRICT
...RESPONDENT(S):
Petition under Article 227 of the Constitution of India,praying that in
the circumstances stated in the grounds filed herein,the High Court may
be pleased to
IA NO: 1 OF 2011(CRPMP 6409 OF 2011
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased to suspend the operation of the decree and order dt.
15/09/2011 passed in EP.No. 65 of 2007 in OS.No. 3 of 1981 on the file
of the court of the Senior Civil Judge, Nandikotkur, pending disposal of
the CRP
IA NO: 1 OF 2016(CRPMP 8473 OF 2016
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased condone the delay of 970 days in filing the petition to set
aside the abatement order
IA NO: 2 OF 2016(CRPMP 8474 OF 2016
Page 6 of 19
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased set aside the order of abatement and permit the petitioners to
bring on record proposed respondents 8 to 13 as respondents 8 to 13
being the legal heirs of deceased second petitioner in the CRP
IA NO: 3 OF 2016(CRPMP 8475 OF 2016
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased bring on record proposed respondents 8 to 13 as
respondents 8 to 13 being the legal heirs of deceased second petitioner
late Mangali Seshamma
IA NO: 1 OF 2018
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may
be pleased to extend the Interim Order dt. 09.12.2011 passed in
CRP.No. 4508/2011 and to pass
Counsel for the Petitioner(S):
1. C PRAKASH REDDY
Counsel for the Respondent(S):
1. K VISWANATHAM
The Court made the following:
ORDER
The above revision is filed against the order dated 15.09.2011 in
E.P.No.65 of 2007 in O.S.No.3 of 1981 on the file of the Court of the
Senior Civil Judge, Nandikottur.
2. a) One Mangali China Nagamma, being the plaintiff, filed suit
O.S.No.3 of 1981 (old O.S.No.437 of 1974) on the file of District Munsif,
Nandikottur against Mangali China Giddamma and K.Mallayya, for
declaration and injunction and alternatively for possession in respect of
land in S.No.269/2-B. The plaintiff also filed another suit O.S.No.30 of
1981 for injunction. The suit O.S.No. 3 of 1981 suit was decreed on
25.06.1983. Aggrieved by the judgment and decree, M.C.Giddamma filed
appeal A.S.No.76 of 1983 on the file of II Additional District Judge,
Kurnool. The appeal was allowed by judgment and decree dated
12.09.1988, and the judgment and decree dated 25.06.1983 in O.S.No. 3
of 1981 was set aside, as a result, the suit was dismissed.
b) Pending the appeal, the plaintiff in the suit M.C.China Nagamma
executed the decree in O.S.No.3 of 1981, as a result, the property was
delivered to the plaintiff on 10.09.1983.
c) Against the judgment and decree in A.S.No.76 of 1983, the
plaintiff filed S.A.No.610 of 1988. The second appeal was dismissed on
contest by judgment and decree dated 09.09.1999, confirming the
judgment and decree in A.S.No.76 of 1983.
d) The legal representatives of defendants 1 and 2 filed E.P.No.65
of 2007 in O.S.No.3 of 1981 on the file of Principal Senior Civil Judge,
Kurnool to recognize them as legal representatives of plaintiff, to issue
a notice under Order XXI Rule 22 of CPC to respondents 2 to 9, who are
legal representatives of 1st respondent (plaintiff), to order restitution of
item Nos.1 to 4, 6 & 7 of schedule property to 3rd petitioner, legal
representative of 1st plaintiff; Item No.5 to 4th petitioner, legal
representative of 2nd defendant under Section 144 of CPC and to grant
mesne profits from10.09.1983.
3. The 1st respondent in the E.P filed counter and opposed the
petition. It was contended, interalia, that after the decree and judgment
in A.S.No.76 of 1983, the defendants did not file any restitution
application. They ought to have filed a petition in the suit seeking
restitution. The respondents did not know of the legal proceedings
that transpired between Giddamma and China Nagamma. Smt M.China
Nagamma, appellant in S.A.No.610 of 1988 died pending the second
appeal on 13.11.1993. However, the second appeal was dismissed on
09.09.1999. Since China Nagamma died on 13.11.1993, the appeal was
abated. The 3rd petitioner is aware of the death of China Nagamma and
thus, the E.P is barred by limitation. In the E.P., the respondents 2 to 10
are legal representatives of deceased M.China Nagamma.
4. By order dated 15.09.2011, the E.P. was allowed. The executing
Court held that the petitioners in E.P.No.65 of 2007 are entitled to
restitution. Aggrieved by the same, the present revision is filed.
5. Pending revision, Mangali Seshamma died, and her legal
representatives were brought on record as petitioners 8 to 13. Some of
the legal representatives of Mangali Seshamma are shown as
respondents 5 to 7.
6. Heard Sri C.Prakash Reddy, learned counsel for petitioners, and
Sri S.Lakshmi Narayana Reddy, learned counsel for 3rd respondent.
7. Learned counsel for petitioners would submit that pending the
second appeal M.China Nagamma died on 13.11.1993 and hence, the
appeal was abated. The judgment in the second appeal dated 09-09-
1999 is a nullity. He would also submit that E.P.No.65 of 2007 was filed
in the year 2007 and hence, the same is barred by limitation. Learned
counsel relied upon Vantaku Appalanaidu And Ors. Vs. Peddinti
Demudamma and Anr1 and Golla Krishna Murthy Vs. Golla Yellaiah
(Died)2.
8. Per contra, Sri S.Lakshmi Narayana Reddy, learned counsel for
the 3rd respondent would submit that the appellant's death in the second
appeal is unknown to the 1st respondent in the second appeal. The
revision petitioners should have taken steps to come on record on the
death of Smt M.China Nagamma. He would submit that the execution
petition filed seeking restitution of property in the year 2007, in pursuance
of judgment and decree dated 09.09.1999 in S.A.No.610 of 1988, is well
within the limitation. Learned counsel relied upon the judgment in
P.Jesaya (DIED) by LRs. Vs. Sub Collector and another 3. He would
also submit that pending the revision, the property was delivered on
26.12.2018 and eventually, prayed to dismiss the revision.
9. Now, the point for consideration is:
Whether the order dated 15.09.2011 in E.P.No.65 of 2007
in O.S.No.3 of 1981 on the file of Senior Civil Judge,
Nandikotkur suffers from illegality or perversity
warranting interference by this Court under Section 115
of CPC?
10. The deceased Chinna Nagamma, the plaintiff in the suit, and
mother-in-law of the 1st defendant Smt Peda Nagamma are the
daughters of Chanchamma. The plaintiff filed suit O.S.No.437 of 1974,
renumbered as O.S.No.3 of 1981 for declaration and injunction and
alternatively for possession. The said suit was decreed by the trial Court
AIR 1982 AP 281
2001 (5) ALD 484
(2004) 13 SCC 431
on 25.06.1983. The 1st defendant in the suit filed an appeal A.S.No.76 of
1983 on the file of II Additional District Judge, Kurnool. Pending the
appeal, the plaintiff took possession of the plaint schedule property on
10.09.1983. Later, on contest A.S.No.76 of 1983 was allowed by
judgment and decree dated 12.09.1988, thereby the suit O.S.No.3 of
1981 on the file of Subordinate Judge, Kurnool was dismissed. The sole
plaintiff filed S.A.No.610 of 1988. The second appeal was argued by both
advocates. The second appeal was dismissed on merits on 09.09.1999.
11. As per the averments of the counter in E.P. coupled with Ex B1,
pending the second appeal, the sole appellant died on 13.11.1993. The
deceased appellant's legal representatives neither informed the
advocate about the death of the appellant nor did choose to come on
record by filing a petition. As seen from the record, no memo was filed
before the Court intimating the death of the appellant. Unaware of the
death of the sole appellant, learned counsel for the appellant as well as
learned counsel for 1st respondent proceeded with arguments.
Thereafter, the judgment was pronounced on merits dismissing the
second appeal.
12. The contention of learned counsel for the petitioner that on the
death of the sole appellant in the second appeal, the appeal stands
abated and hence, the judgment and decree passed in the second
appeal is a nullity, though appears to align with the provisions of Order
XXII CPC, this Court is not persuaded with the said contention because
of the judgment of the Hon'ble Apex Court in P.Jesaya's case (supra-2).
13. In P.Jesaya's case, pending the appeal before the High Court, the
1st respondent died and the said fact was not brought to the Court's
notice and the appellant Court pronounced the judgment. Before the
Apex Court, it was argued that the judgment was passed against the
dead person and hence, it is non-est and cannot be enforced. The
Hon'ble Apex Court answered thus:
"4. Though the arguments are attractive one must also keep in mind
Order 22 Rule 10 of the Code of Civil Procedure. It is obligatory on the
pleader of a deceased to inform the court and the other side about the
factum of death of a party. In this case we find that no intimation was
given to the court or to the other side that the first respondent had died.
On the contrary a counsel appeared on behalf of the deceased person
and argued the matter. It is clear that the attempt was to see whether a
favourable order could be obtained. It is clear that the intention was that if
the order went against them, then thereafter this would be made a
ground for having that order set aside. This is in effect an attempt to take
not just the other side but also the court for a ride. These sort of tactics
must not be permitted to prevail. We, therefore, see no reason to
interfere. The appeal stands dismissed."
14. The above judgment of the Hon'ble Apex Court was followed by
the learned single Judge of the Madhya Pradesh High Court in D.F. Dias
(dead) through LRs. Vs. Shrimurti Parasnath Digambar Jain Bada
Mandir Trust Hanuman Tall 4 , wherein the review was filed on the
ground that the order was passed in the second appeal on 07.12.2022,
whereas the sole appellant died on 04.11.2022 and hence, the advocate
had no right to argue the second appeal on behalf of the deceased
appellant and thus, the order passed in the second appeal is a nullity and
cannot be given effect. In support of the said contention, the judgment of
the Hon'ble Apex Court in Gurnam Singh (D) through LRs and others
REVIEW PETITION No.353 of 2023 dated 22.01.2024
Vs. Gurbachan Kaur (D) by LRs and others [(2017) 13 SCC 414] were
relied upon.
15. The learned single Judge of the Madhya Pradesh High Court by
relying upon P.Jesaya's case (supra-2), held thus:
"11. In view of the aforesaid decision in the case of P. Jesaya (Dead)
By LRs vs. Sub Collector and another (2004) 13 SCC 431 (supra) and
further in view of the provision contained in Order 22 Rule 10-A CPC duly
engaged Counsel for the deceased appellant, Shri Abhishek Dilraj,
Advocate not having discharged his duty to inform the Court, of the
death, and continued to plead/argue second appeal, L.Rs. of appellant
including the applicant, are bound by the order passed in second appeal."
16. A learned single Judge of the Madras High Court in C.Manoharan
Vs. C.V.Subramaniam and others5, by relying upon P.Jesaya's case
(supra-2), held that the decree passed in the appeal is binding upon the
L.Rs. of the first plaintiff therein and the decree cannot be treated as
nullity.
17. Having failed to inform the court about the death of the sole
appellant and the particulars of the legal heirs, the petitioner's contention
that the decree passed against the sole defendant is a nullity, this Court
is not persuaded. Unless and until, the decree is set aside by the
Appellate Court or reviewed by the same Court, it is valid, since the
decree was passed by a competent court having jurisdiction.
18. Where the Court proceeds with the case in ignorance of the fact of
death of a person and passes a decree, that decree cannot be treated as
a nullity. It may, no doubt, be a Wrong decree, but it will have to be set
2007 (1) LW 391
aside by taking appropriate proceedings like appeal, revision or review.
Generally speaking, a decree passed in favour of a dead person is not a
nullity though a decree passed against a dead person can be construed
as a nullity. Even if there is abatement of the suit, that would not make
the decree passed in the suit as one without jurisdiction and the
executing court is not entitled to refuse to execute the decree on the
ground that the plaintiff was not alive on the date when the decree was
passed in his favour. Abdul Azeez Sahib v. Dhanabagiammal and
Ors6.
19. After a decree has once been made in a suit, the suit cannot be
dismissed unless the decree is reversed on appeal. The parties have, on
making the decree, acquired rights of incurred liabilities which are fixed
unless and until the decree is varied or set aside. After a decree, any
party can apply to have it enforced. Lachmi Narain Marwari Vs
Balmakund Marwari 7.
20. It is a settled law that the court executing a decree, normally, shall not go
behind the decree between the parties or their representatives. The Executing
Court need to proceed with the decree according to its tenor, and cannot
entertain any objection that the decree was incorrect in law or on facts. The
executing court is bound by the terms of the decree.
21. If the court passed the decree lacks jurisdiction i.e. inherent lack of
jurisdiction, in such circumstances, one can challenge the execution of the
decree even in Execution proceedings. Pradeep Mehra Vs Harijivan J.Jethwa
(since deceased Thr.Lrs)8
AIR 1988 Madras 5
ILR 4 Pat 61
(2023) 8 Supreme 8
22. In the case at hand, as discussed supra, the death of the sole
appellant was not intimated to the Court. No memo was filed. Learned
counsel appearing on behalf of the appellant proceeded with arguments
as if the appellant was alive. The learned single Judge dismissed the
second appeal on merits.
23. Thus, the legal representatives of the deceased appellant, cannot,
contend, in the execution petition, that the judgment and decree in
the second appeal do not bind them and the E.P. filed for restitution is
barred by time. Even assuming for the sake of argument, that the
judgment and decree in the second appeal is nullity, as it was passed in
favour of a dead person, the judgment and decree in A.S.No.76 of 1983,
holds good. The first appellate Court allowed the appeal and dismissed
the suit. Once the appellate Court allowed the appeal and dismissed the
suit, the defendants are entitled to get possession back, since the
plaintiff took possession of the property pending the appeal based on the
decree in the suit.
24. Given the discussion supra, this court doesn't find merit in the
argument of the learned counsel for the petitioner.
25. Learned counsel for the petitioner would contend that the
Execution Petition filed by the legal representatives of the defendants is
not maintainable and is barred by limitation. This court is not persuaded
by the said submission. The answer to the said question is no longer res
integra. About six decades back, the Hon'ble Apex Court dealt with the
issue and observed as follows:
26. In Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai,9
21. The legal position under Section 583 of the Code of Civil Procedure,
1882, may be stated thus: The benefit accrued to a party under an
appellate decree could be realized by him by executing the said decree
through the Court which passed the decree against which the appeal was
preferred. The appellate Court which set aside or modified the decree of
the first Court could give a direction providing for restitution. Even if it did
not expressly do so, it should certainly be implied as the appellate Court
could not have intended otherwise. The setting aside of the decree itself
raised the necessary implication that the parties should be restored to their
original position. Be that as it may, Courts understood the provision in that
light and held that such a decree was executable as if it contained such a
direction. Such an application was governed by Article 179 of the Limitation
Act, 1887, corresponding to Article 182 of the present Act. No suit lay for
the relief of restitution in respect of such a benefit, the same being held by
the Privy Council to be barred by Section 244 of the Code of Civil
Procedure, corresponding to the present Section 47 of the Code. But the
terms of the section were only confined to a party entitled to a benefit by
way of restitution or otherwise under a decree passed in an appeal and not
under any other proceeding.
22. 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 144 of the
present Code does not create any right of restitution. As stated by the
Judicial Committee in Jai Berham v. Kedar Nath Marwari [(1922) LR 49 IA
351, 355] ,
"It is the duty of the Court under Section 144 of the Civil Procedure
Code 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."
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
1964 SCC OnLine SC 319 : AIR 1965 SC 1477
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 reason of the appellate 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.
29. As we have already indicated, there are strong currents of judicial
opinion expressing conflicting views on the construction of Section 144 of
the Code of Civil Procedure. The Madras High Court
in Somasundaram v. Chokkalingam [(1916) ILR 40 Mad 780] and Chittoori
Venkatarao v. Chekka Suryanarayana [ILR 1943 Mad. 411] , the Bombay
High Court in Kurgodigouda v. Ningangouda [(1917) ILR 41 Bom 625]
and Hamidalli v. Ahmedalli [(1920) ILR 45 Bom 1137] , the Patna High
Court in Bhaunath v. Kedarnath [(1934) ILR 13 Pat 411 (FB)] , the Chief
Court of Oudh in Chandika v. Bital [(1930) ILR 6 Luck 448] , the Rangoon
High Court in A.M.K.C.T. Muthukaruppan Chettiar v. Annamalai [(1933) ILR
II Rang 275] , the High Court of Travancore-Cochin in Kochu
Vareed v. Mariyam [AIR 1952 TC 40] , and the Madhya Pradesh High
Court in Choudhary Hariram v. Pooran Singh [AIR 1952 MP 295] held that
an application under Section 144 of the Code of Civil Procedure was an
application for execution of a decree, while it had been held by the High
Court of Allahabad in Parmeshwar Singh v. Sitaldin Dube [(1935) ILR 57 All
26 (FB)] and other cases, the Calcutta High Court
in Sarojebhushan v. Debandranath [(1932) ILR 59 Cal 337] and Hari
Mohan Dalal v. Parmeshwar Shau [(1929) ILR 56 Cal 61] and other cases,
the Nagpur High Court in Khwaja Allawali Kesarimal [ILR 1947 Nag 176] ,
and the Punjab High Court in Mela Ram v. Dharam Chand and Amrit
Lal [(1958) ILR XI (I) Punj 407 (FB)] that it was not an application for
execution. We have gone through the judgments carefully and we have
derived great assistance from 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 realize 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 within the jurisdiction of the High
Courts which have taken a contrary view, also persuade us to accept the
construction that the application for restitution is one for execution of a
decree. We, therefore, hold on a fair construction of the provisions of
Section 144 of the Code of Civil Procedure that an application for restitution
is an application for execution of a decree.
27. Thus, in view of, the expressions of Hon'ble Apex Court, the
Execution Petition filed by the legal representatives of the Defendants, is
maintainable. The other contention of the learned counsel regarding
limitation, no material is placed before this Court regarding stay if any, in
the second appeal. Unless there is a stay in the second appeal, the
respondents (defendants in suit) would have executed the decree after
the decree in the appeal. Admittedly, an Execution Petition was filed after
the dismissal of the Second Appeal and Article 136 of the Limitation Act
governs the case. The Execution Petition, since filed within the limitation,
the contention of the learned counsel regarding limitation falls to ground.
28. At the hearing it was brought to the Court's notice, by filing delivery
papers, that pending the revision, the Executing Court issued a delivery
warrant and the property was delivered, which was acknowledged by
M.Chenchamma on 26.12.2018. Thus, restitution of the property was
also done.
29. The other argument of the learned counsel for the petitioner, at the
hearing, is that the executing Court had no jurisdiction to entertain the
execution petition since the decree was passed by the Subordinate
Judge, Kurnool untenable. As seen from the record, originally, the suit
was filed before the Subordinate Judge, Kurnool and the same was
decreed. Thereafter, Senior Civil Judge's Court, Nandikotkur was
constituted, within whose jurisdiction the plaint schedule property is
situated. The legal representatives of the deceased, in pursuance of the
judgment in the second appeal, filed the execution petition seeking
restitution of property on the file of Senior Civil Judge's Court,
Nandikotkur within whose jurisdiction the property is located.
30. To appreciate the point of jurisdiction, it is appropriate to extract
Section 144 (1) (c) of CPC, which reads thus:
(c) where the Court of first instance has ceased to exist or has ceased
to have jurisdiction to execute it, the Court which, if the suit wherein
the decree or order was passed were instituted at the time of
making the application for restitution under this section, would have
jurisdiction to try such suit.
31. Thus, though the suit was instituted before the Subordinate Judge,
Kurnool, by the constitution of Senior Civil Judge's Court, Nandikotkur,
the jurisdiction of Subordinate Judge, Kurnool, over the subject property,
ceased to exist, since the subject property is situated within the limits of
Senior Civil Judge's Court, Nandikotkur. Hence, the Senior Civil Judge's
Court, Nandikotkur has jurisdiction to entertain the execution petition.
32. The Executing Court considered all these aspects and allowed the
execution petition and thereafter the subject property was delivered, as
indicated supra.
33. The order passed by the executing Court does not suffer from any
illegality or perversity, brooks interference by this Court under Section
115 of CPC. This Court does not find any merit in this revision and
hence, the same is liable to be dismissed.
34. Accordingly, the Civil Revision Petition is Dismissed. No order as
to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
___________________________
JUSTICE SUBBA REDDY SATTI
Note: LR Copy to be marked.
B/O
PVD
