Das, J.The question formulated for the decision of the Full Bench is as follows:--"Whether Article 181 or Article 182, of Schedule I of the Indian Limitation Act is applicable to an application for the exercise of the power of restitution conferred either by Section 144 or Section 151 of the Code of Civil Procedure, and, if neither of the above articles is applicable then, is there any other article applicable to the case." A preliminary argument was advanced to us on behalf of the respondent to the effect that the reference is not competent having regard to the fact that a Division Bench of this Court presided over by the learned Chief Justice and Mr. Justice Jwala Prasad expressed a final opinion on this point at an earlier stage of this case.

2. It appears that two questions were involved in the application for restitution presented by the defendant-respondent Basanta Kumari Dasi; first, whether the application was not barred by Limitation, and secondly, whether Balmukund, the appellant, against whom the application was made could be regarded in the circumstances of the case as the representative-in-interest of the plaintiffs, who obtained a decree against Basanta Kumari which decree was subsequently set aside on appeal. It may be mentioned that Balmukund was not a party to the suit, but is in actual possession of the property which is the subject-matter of the application for restitution by virtue of his purchase at a Court sale held in pursuance of a decree which had been obtained by him against the plaintiffs.

3. The learned Munsif to whom the application for restitution was presented, dismissed it on the ground that it was barred by limitation. He held, however, that Balmukund was the representative of the plaintiffs, and that an effective order could be made against him provided the application was within time. Basanta Kumari appealed from the decision of the Munsif; and the learned Subordinate Judge dealing with the appeal took the view that no application for restitution could be made by Basanta Kumari against Balmukund. Having arrived at that conclusion he thought it unnecessary to deal with the question of limitation and he left that question undecided.

4. From that decision Basanta Kumari appealed to this Court and a Division Bench of this Court presided over by the Honble the Chief Justice and Mr. Justice Jwala Prasad took the view that Balmukund was the representative of the Plaintiffs and in that view the Division Bench set aside the decision of the Subordinate Judge and remanded the case to him for considering the question of limitation. The whole argument of the respondent is based on this decision of the Division Bench, Basanta Kumari Dasi v. Balmukund Marwari AIR 1923 Pat. 371 , and it has been strongly insisted before us that the Division Bench decided finally that Article 182 was applicable to an application for restitution and that it became necessary for the Division Bench to remand the question of limitation to the Subordinate Judge only because it was urged on behalf of Balmukund that even on the assumption that Article 182 was applicable, the application for restitution was barred by limitation. It appears that certain facts which it was necessary for Basanta Kumari to establish to enable her to contend that her application for restitution regarded as an application for execution was within time were not before the Division Bench of this Court as the question had not been gone into by the learned Subordinate Judge: and the whole argument of Mr. A.K. Roy on behalf of the respondent was to the effect that the only question which was left for the decision of the Subordinate Judge was whether upon the facts the application of Basanta Kumari was within time, the Division Bench having decided finally that the application must be regarded as an application for execution.

5. On remand the learned Subordinate Judge considered that he was bound by the decision of this Court, that Article 182 was applicable to an application for restitution; and he came to the conclusion that in the circumstances of the facts proved before him, the application was within time. From that decision there was an appeal to this Court and another Division Bench of this Court, presided over by Mullick and Bucknill, JJ., took the view that the question had not been finally decided by the earlier decision of the Division Bench and being of opinion that the question was of sufficient importance, has referred it for the decision of the Full Bench.

6. It is obvious that if the question was in fact decided by the Division Bench by its decision Basanta Kumari Dasi v. Balmukund Marwari AIR 1923 Pat. 371 , it was not open to another Division Bench at another stage of the case to allow the question to be re-agitated before it.

7. I have, however, come to the conclusion that the question was not in fact decided by the Division Bench. I am willing to admit that there are expressions in the leading judgment which strongly support the argument advanced on behalf of the respondent; but the question must, in my opinion, be decided on the terms of the actual order passed by the Court. Now the actual order runs as follows:

In the result we set aside the decision of the Subordinate Judge refusing the appellants application but as the appellants right to succeed in that application must still depend upon the question of limitation, we direct that the learned Subordinate Judge, before finally disposing of the appeal do consider the question of limitation and come to a decision thereon in the light of the facts already before him.

8. It will be observed that the whole question of limitation was remanded for the decision of the learned Subordinate Judge, and not the narrower question of fact, namely, whether Basanta Kumari had taken certain steps in execution which would save her application for restitution under Article 182 of the Limitation Act. It is worthy of note that Mr. Justice Jwala Prasad agreed "to the order proposed," namely, the order remanding the question of limitation for the decision of the learned Subordinate Judge. As I have said already the judgment of the learned Chief Justice leaves no room for doubt that in his opinion Article 182 is applicable to an application for restitution, but if he had intended to decide the question finally and if Mr. Justice Jwala Prasad agreed with that view, the order of remand would have been couched in different language.

9. It is one thing to express a view; it is another and a different thing to decide a point. I can hardly believe that so careful a Judge as the learned Chief Justice should have asked the Subordinate Judge to decide the question of limitation, if he had decided it himself; and though I quite agree that it was in any case necessary to remand the case for the investigation of certain facts upon which alone it could be argued that the application for restitution was within time even assuming that Article 182 was applicable to such an application, the form of order, in my opinion, precludes the argument that the Court decided that Article 182 was applicable and remanded the case merely for the investigation of an issue of fact. If the argument of the learned vakil for the respondent were well founded the Court should have remanded the case under the provisions of Order 41, Rule 25 and not under the provisions of Order 41, Rule 23. In any event I cannot ignore that Mr. Justice Jwala Prasad was careful to say that he agreed to the order proposed by the learned Chief Justice and that the order proposed left the whole question of limitation to be decided by the learned Subordinate Judge. In my opinion the question of limitation, was not decided by the Division Bench and it was open to Mullick and Bucknill, JJ., to refer it for the decision of the Full Bench. I would accordingly overrule the preliminary point raised on behalf of the respondent.

10. I now come to the point raised in the Order of Reference, namely, whether Article 181 or Article 182 is applicable to an order for restitution. Now it seems to me that before dealing with the question it is necessary to have a clear idea as to what is meant by restitution, and whether the jurisdiction as to restitution is the same as the jurisdiction to an execution. Article 182 applies to an application for execution of a decree or order; and the broad question which we have to determine is whether an application for restitution is in essence an application for execution. That the jurisdiction to make restitution exists and is inherent in every Court is not open to doubt; nor is it open to doubt that that jurisdiction flows not from any express power that might be given in that behalf by the Legislature but from the recognition of the principle that "it is the duty of the Courts to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court:" Rodger v. The Comptoir De Paris [1871] L.R. 3 P.C. 465.

11. I desire to emphasize the point that this jurisdiction was not for the first time conferred by the Code of Civil Procedure, but that it existed independently of the Code and could be, and was in fact, exercised whenever the act of the Court did any injury to the suitors. Execution, on the other hand, signifies the enforcement or effectuation of the judgments or orders of Courts of justice. In a narrower sense it means the enforcement of such judgments or orders by a public officer under certain express powers conferred by the Code. Execution presupposes a decree or order capable of being carried into effect; restitution presupposes an act of the Court which has done an injury to the suitors. Execution will issue as of course; but in cases not comprehended strictly within the letter of Section 144 of the Code, restitution is not a matter of course but depends upon the discretion of the Court and will be ordered only when the Justice of the case calls for it. Asutosh v. Upendra [1916] 24 C.L.J. 467 It seems to me that when the nature of the jurisdiction as to restitution is closely examined, it will be found that it bears only a superficial resemblance to the jurisdiction as to execution.

12. The argument in favour of the view that restitution is by way of execution has been put very forcibly and concisely by the learned Chief Justice of this Court in his order of remand, Basanta Kumari Dasi v. Balmukund Marwari AIR 1923 Pat. 371 .

13. "Although," said his Lordship, "an application u/s 144 is not included in Order 21 which lays down the rules of procedure in execution cases still in substance I think that an application asking for restitution in consequence of a decree having been set aside is just as much an application in execution of that decree as any other application which seeks to have the actual declarations in the decree enforced. It is true that the decree only deals with it in a negative sort of way but in fact the result of setting aside a decree in favour of one party is to give, the other the right to be restored to the same position as he was in before that decree was passed and to set aside any advantage that the decree-holder might have obtained by executing the decree."

14. I understand that the view of the learned Chief Justice is that restitution is nothing more than carrying into effect this negative aspect of the decree. Now let me take a concrete case. A obtains a decree against B for Rs. 5,000 and recovers the money from B by levying execution. The decree is ultimately set aside in appeal.

15. I quite agree that the decree reversing the primary decree is authority for the view that A should refund to B the sum of money taken by him in execution, but in making restitution the Court has complete power to direct A not only to pay the sum of Rs. 5,000, but also to pay interest upon the sum to B. upon what is the jurisdiction to compel payment of interest founded

16. I quite agree that the appellate decree in so far as it reversed the decree of the Court of first instance may be read as containing a direction by implication that A should refund to B the sum of money taken by him in execution, but there is no direction either express or by implication that A should pay interest on the sum seized by him by virtue of a wrong order of the Court. There is no jurisdiction in a Court executing a decree to award interest where the decree itself is silent as to interest. Whence then does the Court derive jurisdiction to compel a party to refund not only the principal sum seized by him in execution of an erroneous decree of Court (as to which there may be a direction by implication in the decree reversing the original decree) but also interest upon that sum (as to which there is no direction whatever either express or by implication)

17. The answer, I think, is given by Lord Cairns in the leading case of Rodger v. The Comptoir De Paris [1871] L.R. 3 P.C. 465. That was a case in which the Supreme Court of Hongkong gave a decree for money to the plaintiff in an action for trover. There was an appeal to the Privy Council, but pending the appeal the plaintiff recovered the sum decreed in his favour by levying execution. The Privy Council set aside the judgment of the Supreme Court of Hongkong and directed non-suit to be entered.

18. The defendant, the successful party in the Privy Council, applied for restitution not only of the money which had been paid under the original decree, but also of interest upon all the sums paid. The Supreme Court at Hongkong took the view that, there being no direction as to payment of interest in the decree of the Privy Council and interest not being recoverable either at common law or by statute in the case of repayment of money erroneously paid under a judgment which is reversed, it had no power to direct the payment of interest upon the sums paid under the original decree. Lord Cairns after pointing out that it was the duty of the tribunals to take care that no act of the Court does an injury to suitors in the Court, proceeded to say as follows:

It is contended, on the part of the respondents here, that the principal sum being restored to the present petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury will be done to the petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far as, therefore, principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the petitioners, and that the perfect judicial determination, which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them with interest during the time that the money has been withheld.

19. It will be noticed that Lord Cairns does not base his decision upon the ground that there was in that case a decree which could only be carried into effect by directing payment not only of the principal sums paid under the erroneous decree of the Court of first instance but also of the interest on those sums. His decision, on the other hand, is based upon the view that it is the duty of the Court to take care that no injury is done to the suitors by any act of the Court.

20. In my opinion the decision of Lord Cairns is authority for the view that the jurisdiction to order restitution is inherent in the Court and that it flows, not from any power which it may have to carry into effect the decree or order of the Courts, but from the recognition of the duty which it owes to the suitors to take care that no injury is done to them by its acts.

21. The next question is, have the CPC and the Limitation Act expressed a different view as to the nature of restitution It has been argued before us that the Code of 1882 contains a clear intimation to the effect that an application for restitution is to be regarded as an application for execution and that it was not the intention of the Code of 1908 in any way to alter the law on the subject. The provision as to restitution found its place in the Code of 1882 in the chapter dealing with appeals, not in the chapter dealing with executions and Section 583 which contains the provision as to restitution ran as follows:

When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an 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 herein before prescribed for the execution of decrees in suits.

22. I can find nothing in Section 583 to encourage the argument that in the Code of 1882 the legislature expressed the view that an application for restitution was to be regarded as an application for execution. If that was the view of the legislature, the provision should have found its place not in the chapter relating to appeals but in the chapter relating to execution. It no doubt laid down the procedure as to the execution of an order for restitution, but there is no suggestion whatever in the section itself that an order for restitution should be considered as an order for execution.

23. The Code of 1908 removes any doubt that might arise upon the interpretation of the earlier Code. The word "decree" has been defined in the Code of 1908 to include the determination of any question within Section 144 which is itself a decree and capable of execution as such. It is in my opinion impossible now to contend that an order for restitution is an order in execution.

24. Apart from any other consideration it seems to me that the term "application for the execution of a decree or order" in Article 182 of the Limitation Act must be understood in the sense in which that term is used in the Code of Civil Procedure. The CPC and the Indian Limitation Act are the two great procedural Codes in India and they were amended in the same year and were to come into operation on the same day. They are statutes in pari materia and are to be taken together as forming one system, and as interpreting and enforcing each other: see Palmers case [1784] 1 Leach. C.C. 355. Now Article 182 applies in terms to applications for executions of decrees or orders. Applications for execution of decrees or orders are dealt with in Order 21 of the Code. In my opinion, Article 182 applies to such applications for execution as are contemplated by the Code and are provided for in Order 21 of the Code. It is not disputed that an application for restitution is not an application provided for in Order 21 of the Code.

25. This is my view of the question submitted for the decision of the Pull Bench, but even if that were not my view, I think I would be bound to follow the decisions of the Calcutta High Court which are to the effect that an application for restitution is governed by Article 181 and not Article 182 of the Limitation Act. See Harish Chandra v. Chandra Mohan [1900] 28 Cal. 113, Masirunnissa Khatun v. Joy Chand Lal Boyed [1912] 16 I.C. 238, Gangadhar Marwari v. Lachman Sing [1910] 11 C.L.J. 541 and Asutosh Gossain v. Upendra Prosad Mitra [1916] 24 C.L.J. 467. It is quite true that a different view has been taken in the other High Courts, but as was pointed out by the Full Bench of this Court in Haji Abdul Gani v. Raja Ram 20 C.W.N. 829.

26. "This Court should not without very good reason depart from a long course of decisions of the Calcutta High Court." The question raised in the Order of Reference is a question of procedure and to do otherwise than follow the decisions of the Calcutta High Court on the point would cause great and unnecessary confusion. It has been contended before us that the question has not been argued in the Calcutta High Court as to the applicability of Article 181 as opposed to the applicability of Article 182 in relation to an application for restitution. That may be so, but where the question is one of procedure, it is of the utmost importance that the suitors should know where they stand and it is not a matter of much moment that the question was not raised in the Calcutta High Court in the form in which it has been raised here. It is sufficient that the Calcutta High Court has intimated to the suitors that Article 181 applies to an application for restitution. It is worthy of note that in this Court the view has been taken that Article 181 is applicable to an application for restitution. See Krupasindhu Roy v. Mahanta Balbhadra Das [1917] 3 Pat. L.J. 367.

27. In my opinion Article 181 is applicable to an application for restitution and as it is conceded before us that if Article 181 applies the application is clearly barred by limitation. I would allow this appeal, set aside the order of the Court below and restore the order of the Court of first instance.

28. As a result of the decision of the majority of this Bench, this appeal is dismissed with costs.

Ross, J.

29. The first point for consideration is whether it was decided by this Court in Basanta Kumari Dasi v. Balmukund Marwari AIR 1923 Pat. 371 that the article governing the case is Article 182. Two questions were raised in that appeal. The first was whether Balmukund Marwari then Respondent No. 1 was the representative in interest of the other two respondents, so that restitution might be claimed as against him. The other was the question of limitation. The Munsif had decided both these points: the first in favour of the present respondent and the second against her. The Subordinate Judge on appeal had held that the present respondent was not entitled to regain possession from anybody; and, without dealing with the question of limitation, had dismissed the application. In this Court the first question dealt with was the position of Balmukund. It was held that his position was no better than that of his mortgagors and that the application for restitution was maintainable as against him. The Court then turned to the question of limitation which had not been dealt with by the Subordinate Judge. It was pointed out that it was not quite clear from the Munsifs judgment how far any application for execution of the decree was made or how far that application included a claim to be restored to possession of the property.

30. The Subordinate Judge, who might have gone into the evidence, had not done so. But before sending back the case for a determination of this question by the lower appellate Court, the learned Chief Justice considered that he had to be satisfied that even upon the facts so far known that the then appellant really had a case to present upon this part of the appeal. In this connection the question of Articles 181 and 182 was discussed. The opinion was expressed that Article 182 applied; and, there being therefore a case to present upon this part of the appeal, the case was remanded in the following terms:

In the result we set aside the decision of the Subordinate Judge refusing the appellants application; but as the appellants right to succeed in that application must still depend upon the question of limitation, we direct that the learned Subordinate Judge, before finally disposing of the appeal, do consider the question of limitation and come to a decision thereon in the light of the facts already before him. For that purpose he will be entitled of course to consider any orders in the case that have been made and that appear in the order sheet in the Court records or in the record before him.

31. It seems to be plain from the terms of this order that the remand was a remand of the whole case under Order 41, Rule 23 of the Civil Procedure Code. The Subordinate Judge had in effect disposed of the application on a preliminary point and the appellate Court remanded the case directing what issue was to be tried. It was not a remand under Order 41, Rule 25 of the Civil Procedure Code. The whole question of limitation was before the Subordinate Judge and in my opinion it was not and could not have been the intention of this Court to decide a part of the question, namely, the article of the Limitation Act applicable, and leave a part only, namely, the question of fact for the decision of the Court to which the remand was made. The applicability of Article 181 or Article 182 had to be discussed in order that the Court might be satisfied that there was a case worth remanding: but the opinion expressed on that part of the case was limited to that purpose and was not in my opinion intended to be in any sense conclusive of the question. On this point therefore I agree with the judgment that has just been delivered.

32. I now turn to the question whether Article 181 or Article 182 applies to an application for restitution and on this point I am of a different opinion, I can see no reason in principle why an application for restitution should not be treated as an application for execution. There may be no express direction for restitution in the decree, but restitution follows as a necessary consequence where a decree that has been executed is varied or reversed and the effect of Section 144 of the Code is that a direction for restitution is implied in the decree. The order reversing or varying a decree is by implication an order for restitution of any property taken in execution of that decree and is immediately capable of execution.

33. To my mind the words of the section, "The Court ... shall ... cause ... restitution to be made," import execution. It may be noted in passing that in England if, a judgment for the recovery of land be reversed or set aside after possession has been obtained thereunder, restitution may be obtained by a writ of possession addressed to the Sheriff--Chittys Kings Bench Forms, Fourteenth Edition, page 693.

34. Authority also seems to me to be decidedly in favour of this view.

35. Three decisions in Calcutta were cited in which it was held that Article 181 applied. In Harish Chandra v. Chandra Mohan [1900] 28 Cal. 113, the learned Judges referred to the decisions in Nand Ram v. Sita Ram [1886] 8 All. 545 and Kurupam Zamindar v. Sadasiva [1886] 10 Mad. 66 and said that they were disposed to agree with the latter; but added that whether Article 178 or Article 179 of the second schedule to the Indian Limitation Act of 1877 (Act XV of 1877) applied the application was out of time. The question therefore did not call for decision in that case. In Masirunnissa Khatun v. Joy Chand [1912] 16 I.C. 238, the decision in Harish Chandra v. Chandra Mohan [1900] 28 Cal. 113 was followed without discussion; and on the facts the question whether Article 181 or Article 182 of Act IX of 1908 applied did not require to be decided. In Asutosh Gossain v. Upendra Prosad Mitra [1917] 3 Pat. L.J. 367, it was held that no question of limitation arose, though incidentally a reference was made to Article 181.

36. There is one case in Madras, viz., Kurupam Zamindar v. Sadasiva [1886] 10 Mad. 66 where, also, although the learned Judges were disposed to think that Article 178 applied, the application was barred whether the article applicable was Article 178 or Article 179. Moreover, it was held that the application was an application in execution governed by the rules prescribed by the Code for the execution of decrees.

37. It may also be noted that one of the Judges who was a party to that decision expressed a different opinion in Venkayya v. Ragava Charlu [1897] 20 Mad. 448. In Shivabai v. Yesoo [1918] 43 Bom. 235, it was stated that Article 181 applied; but there was no discussion of the question, the only other article considered being Article 166. In Honifunnissa v. Chunni Lall AIR 1921 All. 321 , it was assumed that the case was governed by Article 181 and no question of law was discussed.

38. On the other hand there are reasoned decisions for the application of Article 182 of which some of the more important are the following. In Venkayya v. Ragava Charlu [1897] 20 Mad. 448, it was held that Article 179 applied and it was observed that the reference to Article 178 in Kurupam Zamindar v. Sadasiva [1886] 10 Mad. 66 was a mere obiter dictum. In Somasuniaram Pillai v. Chokkalingam Pillai (1916) 40 Mad. 780 the question was discussed by Seshagiri Ayyar, J., who, referring to the argument based on the difference in language between Section 583 of the previous CPC and Section 144 of the present Code said:

We are unable to see the difference. Section 144 of the present Code has been so framed as to enable the successful party in the Appellate Court to be placed in status quo ante. The language of Section 583 of the old Code was not wide enough to cover all cases of benefits arising from the reversal of a decree being fully realized by the successful party. Apart from this change we see no ground for holding that the legislature intended to make any departure in the procedure by which restitution is to be obtained. Under the old Code, restitution was by way of execution: see Prag Narain v. Kamakhia Singh [1909] 31 All. 551. The same rule applies to similar applications under the new Code. The language of Section 47 of the Code would cover all cases of restitution. The party seeking the aid of the Court is agitating a question relating to the execution of the decree under which the other party deprived him of his property.

39. The same view was taken in Unnamalai Ammal Vs. Mathan alias Arunachalam and Another, , a case of the Madras High Court, where it was held with reference to the difference between Section 583 of the old Code and Section 144 of the new Code that "the legislature could not have intended that an application for restitution should not be treated as an application in execution. All that the legislature intended was to make clear that certain applications, which under the old Code were not included in Section 583, were included in Section 144, Civil Procedure Code."

40. The decision in Asutosh Gossain v. Upendra Prosad Mitra [1916] 24 C.L.J. 467 was referred to and it was pointed out that the observation made in that case was obiter and that no reasons were given in support of the view that Article 182 did not apply. In Kurgodigouda v. Ningangouda [1917] 41 Bom. 625 an order for restitution was treated as an order for execution.

41. The question was also dealt with in Sayad Hamidalli v. Ahmadalli AIR 1921 Bom. 67 where Macleod, C.J., decided that an application for restitution could not be treated as anything else than an application for execution of the decree of the appellate Court. It is the decree of the appellate Court which entitles the successful appellant to get back something which he had been deprived of by the decree of the lower Court, under which the then successful party had actually received possession. In order, therefore, to get back what he has lost, the successful appellant must apply for execution of the order which entitles him to get back that possession. Clearly, therefore Article 182 applies to application u/s 144.

42. In Nand Ram v. Sita Ram [1886] 8 All. 545 Oldfield and Tyrrell, JJ., described the benefit by way of restitution under a decree as a necessary incident of the decree and held that the plaintiff was competent to move the local Court to execute the appellate decree in his favour according to the rules prescribed for the execution of decrees in suits and that Article 179 applied.

43. In Damodhar Das v. Brij Lal [1915] 87 All. 567 Chamier and Piggott, JJ., held that execution covered restitution. The question, however, in my opinion, is concluded by the decision of the Privy Council in Prag Narain v. Kamakhia Singh [1909] 31 All. 551. In that case the Respondents had applied in the execution proceedings for mesne profits and interest by way of restitution. It has held that their claim to have the questions in dispute determined in the execution proceedings was justified by Sections 583 and 244 of the Code.

44. The weight of authority, therefore in my opinion, is in favour of the view that Article 182 governs the present case and I would answer the question in this sense. I would accordingly hold that the application for restitution was not barred by time and would dismiss the appeal with costs.

Kulwant Sahay, J.

45. This case has been referred to a Full Bench for decision of the question as to whether Article 181 or Article 182 of Schedule I of the Indian Limitation Act is applicable to an application for the exercise of the power of restitution conferred either by Section 144 or Section 151 of the Civil Procedure Code, and if neither of the above articles is applicable, then is there any other article applicable to the case The question has arisen in a second appeal and therefore the whole appeal is before the Full Bench for final decision.

46. The question propounded arose under the following circumstances: On the 10th of January 1917, an ex parte decree was obtained by Abinash Chandra Karmakar and Satish Chandra Karmakar against Basanta Kumari Dasi and another, directing, among other reliefs, the ejectment of the defendants from a house occupied by them. This decree was executed and possession was delivered to the plaintiffs decree-holders on the 29th of March 1917.

47. Upon an application made by the defendants under Order 9, Rule 13 of the Civil P.C. the decree was set aside by the Court of first instance and the suit was restored by an order dated the 18th of June 1917. The suit was ultimately dismissed after hearing on the 7th of March 1918. There was an appeal to the District Judge which was also dismissed on the 13th of July 1918. On the 29th of June 1921 the defendants filed an application before the learned Munsif for restitution and prayed for restoration of possession of the house u/s 144 of the Code of Civil Procedure. It appears that at this time the plaintiffs who had obtained the decree, and were put in possession on the 29th of March 1917, were no longer in possession; but one Balmukund, a mortgagee from the original plaintiffs decree-holders, was in possession by virtue of purchase and delivery of possession in execution of a mortgage decree obtained by him against the original plaintiffs.

48. Two questions were raised before the learned Munsif by way of objection to the application u/s 144 of the Civil P.C. The first objection was that the application could not be entertained against Balmukund who was not the representative of the original decree-holders; and the second objection was that the application was barred by limitation. The learned Munsif held that restitution could be granted against Balmukund who was a representative of the original decree-holders; but the application was barred by limitation, and he accordingly rejected the application.

49. On appeal to the Subordinate Judge it was held that the application could not be entertained inasmuch as the original Defendants had no title to the house, the title being in the son of Basanta Kumari Dasi, and the defendants being in possession under the permission of the son, and further that the application could not be entertained against Balmukund. In this view of the case the learned Subordinate Judge held that the question of limitation did not arise and ho dismissed the application.

50. There was a second appeal to this Court which came up for hearing in a Division Bench presided over by his Lordship the Chief Justice and Mr. Justice Jwala Prasad. Their Lordships held that the Subordinate Judge was wrong in holding that the application could cot be maintained by the defendants or that it could not be entertained against Balmukund. They accordingly set aside the order of the Subordinate Judge in so far as it held that the application was not maintainable; but as the question of limitation had not been decided by the learned Subordinate Judge their Lordships remanded the case for a consideration of the question.

51. In the course of the judgment his Lordship the Chief Justice expressed the view that the proper article applicable to the case was Article 182 and not Article 181 of the first schedule of the Indian Limitation Act. His Lordship expressed the opinion that applications for restitution were really applications for execution of decrees, and consequently Article 182 applied, and the Petitioners for restitution were entitled to show that a previous application for restitution had been made by them within the period of limitation; and if they succeeded in doing so, then the present application, filed on the 29th of June 1921 being within three years from the previous application, would be within time. Moreover, it was stated before their Lordships that in a previous application for restitution which was filed within time a stay had been obtained from the Court of appeal below and that the period during which the stay was in force should be excluded.

52. Their Lordships therefore remanded the case to the lower appellate Court. On remand the learned Subordinate Judge has held that the application was within the period of limitation treating it as an application for execution under Article 182 of the Limitation Act. Against this order of the learned Subordinate Judge the present second appeal has been preferred to this Court.

53. This appeal came on for hearing in a Division Bench presided over by Mr. Justice Mullick and Mr. Justice Bucknill, and their Lordships differed from the opinion expressed by their Lordships the Chief Justice and Mr. Justice Jwala Prasad on the question of limitation, and the case has accordingly been referred for the decision of a Full Bench.

54. In my opinion the proper article applicable to an application for restitution u/s 144 or Section 151 of the CPC is Article 181 of Schedule I of the Indian Limitation Act. Section 144 provides for cases where a decree is varied or reversed, and if any party is entitled to any benefit on account of such variance or reversal by way of restitution or otherwise, that such restitution should be granted to such party and that the parties should be placed as far as it may be possible in the same position which they would have occupied but for such decree or such part thereof as has boon varied or reversed.

55. The right to apply for restitution is a right which is independent of any relief, granted by the decree. The power to grant restitution is an inherent power in a Court to restore parties in the position which they occupied before the decree, which is reversed, was passed. It is the power to prevent any injury being caused to any party by any act of the Court itself, and this power, to my mind, is wholly independent of the rights conferred by a decree and which rights can be enforced only by way of execution. Where, for instance, in a suit for possession of property the plaintiff succeeds in the Court of first instance, and in execution of that decree possession is delivered to him, but on appeal the decree is subsequently reversed, the final decree of the Court of appeal merely declares that the plaintiff is not entitled to any relief and does not provide for re-delivery of possession to a successful defendant.

56. The defendant in such a case cannot properly apply to execute the decree of the Court of appeal in order to be restored to possession because there is no such direction in the decree. The application can be made to the Court only in its inherent power to restore parties to their original position. This application for restitution is to my mind an application either in the suit itself or by way of miscellaneous proceeding invoking the Courts inherent jurisdiction to remedy an injury caused to a party. In some of the cases dealing with the point, it has been said that the relief granted by the decree of the Court of appeal which varies or reverses the decree of the Court of first instance is of a negative character and that it grants a relief to the successful party which is capable of enforcement by way of execution.

57. With very great respect to the learned Judges who hold this view I am unable to agree with them. A decree can be executed only in so far as it grants any relief; so far as the successful defendant is concerned it merely dismisses the claim of the plaintiff; there is no relief either positive or negative granted to the defendant, and there is no direction in the decree which is capable of execution. That an application for restitution u/s 144 is not an application for execution is clear on a reference to the old Section 583 of the Code of 1882. Section 583 provided for restitution in case of decrees passed in appeal under Ch. 41 of the Code of 1882 which related to appeals from original decrees.

58. Moreover, it directed that on an application being made by any party entitled to any benefit by way of restitution or otherwise, under a decree passed in appeal and who desires to obtain execution of the same the Court to which the application is made shall proceed to execute the decree passed in appeal according to the rules which were prescribed for the execution of decrees in suits.

59. There was therefore a clear provision in the Code of 1882 that application for restitution should be dealt with as applications for execution. In Section 144 of the present Code there is no reference to execution at all. Moreover, if an application for restitution be created as an application for execution, then I fail to see any necessity for enacting Section 144 at all because such matters had already been provided for in Section 47 of the Code. If an application for restitution is an application for execution then it relates to questions arising between the parties to the suit or their representatives, and relating to the execution, discharge or satisfaction of the decree.

60. Furthermore it is provided in Section 47 that questions relating to execution, discharge or satisfaction of a decree shall be determined by the court executing that decree and not by a separate suit. Section 144 also provides that no suit shall be instituted for the purposes of obtaining any restitution or any other relief which could be obtained by application under Sub-section 1 of the section. To my mind, Section 47 deals with questions relating to execution of decrees which properly may be treated as applications in execution, while Section 144 deals with questions which do not come strictly within the meaning of execution of a decree, but which are analogous to it, namely applications for relief consequent upon a decree being set aside.

61. Under the definition of a decree as given in the CPC the determination of any question within Section 144 is a decree: and when an application is made for restitution u/s 144 and the Code makes an order directing restitution to be effected, that order is a decree which has to be enforced in the way in which decrees are enforced by way of execution.

62. I am therefore of opinion that application for restitution u/s 144 or 151 of the CPC is not an application for execution and the proper article of the Limitation Act applicable to such an application is Article 181 of the first schedule of the Act. That Article 181 applies to such applications has been uniformly held by the Calcutta High Court see Harish Chandra v. Chandra Mohan [1900] 28 Cal. 113 and Asutosh Gossain v. Upendra Prosad Mitra [1916] 24 C.L.J. 467]. There has been a divergence of opinion on this point in the Bombay High Court. In Kurgodigouda v. Ningan gouda and Sayad Hamidalli v. Ahmadalli AIR 1921 Bom. 67 it has been held that Article 182 applies, while in Shivabai v. Yesoo [1918] 43 Bom. 235 the view has been expressed that the proper article applicable in Article 181. In Madras the later cases are in favour of the view that Article 182 applies: see Venkayya v. Ragava Charlu [1897] 20 Mad. 448 and Somasundaram Pillai, Chokkalingam Pillai (1916) 40 Mad. 780.

63. The Allahabad High Court also took the same view in the case of Nand Ram v. Sita Ram [1886] 8 All. 545; whereas the Patna High Court in the case of Krupasinthu Roy v. Mahanta Balbhadra Das [1917] 3 Pat. L.J. 367 took the view that Article 181 was applicable. With very great respect to the Judges who hold the contrary view I beg to differ from them, and I would answer the question referred to us by saying that the proper article applicable to an application for restitution is Article 181 of Schedule I of the Indian Limitation Act.

64. It has, however, been contended by the learned vakil for the respondents that the question as to which article the Indian Limitation Act is applicable to the present case has already been determined by this Court in the order of remand of their Lordships the Chief Justice and Mr. Justice Jwala Prasad, and that it is no longer open to us to come to a different finding on the same question in this case, and reliance had been placed upon the case of Rai Birj Raj Krishna v. Chhatu Singh AIR 1923 Pat. 226 .

65. On the other hand, it has been contended by the learned vakil for the appellant that their Lordships in their order of remand did not intend to lay it down as a proposition of law that Article 182 was applicable, and that when the question of limitation was sent down to the Court below for decision it was the whole question and it is still open to the appellant to contend that the proper article applicable to the case is Article 181 and not Article 182. The learned Judges before whom the case came in appeal after the remand have taken the view that the Division Bench which made the order of remand did not intend to decide this question finally.

66. I am unable to agree with them. When I read the judgment of the Lordship the Chief Justice I curt have no doubt that his Lordship did lay it down as a proposition of law that the proper article applicable to the question was Article 182, and the case was remanded for a finding on the question of fact as to whether or not the application, treating it is an application in execution, was within time within the meaning of Article 182 of the Limitation Act. In the first place in dealing with the question as to whether the application for restitution was maintainable his Lordship the Chief Justice observes as follows:

I think, therefore, that apart from the question of limitation which must be considered presently the decision of the learned Subordinate Judge cannot stand.

67. His Lordship thereupon proposed to consider and did as a matter of fact proceed to consider the question of limitation. His Lordship then observes that it was not quite clear from the judgment of the Munsif how far any application for execution of the decree was made or how far that application included a claim to be restored to possession of the property, and after referring to the fact that the learned Subordinate Judge had not dealt with this matter his Lordship says that the Subordinate Judge would be entitled to go into the evidence upon this matter and arrive at a conclusion about it. But before sending back the case for determination of this question by the lower appellate Court, his Lordship thought that he must be satisfied that the appellant really had a case to present upon this part of the appeal even upon the facts disclosed so far. His Lordship then proceeds to consider the question whether an application u/s 144 of the CPC was to be treated as an application in execution, because if it was not to be so treated, that it was quite clear that the application would be barred by limitation and no remand would be necessary. His Lordship then refers to the case of Somasundaram Pillai v. Chokkalingam Pillay (1916) 40 Mad. 780, where it was laid down that an application for restitution was an application for execution under the present CPC and says: "In my opinion that case was properly decided." His Lordship then examines the question in detail and comes to the following conclusion:

I think, therefore, that it is only right and proper to regard an application u/s 144 as an application made in execution of a decree.

68. His Lordship then refers to certain circumstances which if proved would save the application, treating it as one for execution from being barred by limitation. One of those circumstances was the fact appearing from the Munsifs judgment that on 12th June 1918, an application for execution had been made by the appellant in the appeal before his Lordship and with reference to that application, his Lordship observes as follows:

If in fact that application was made, then I think it being, as I have already said, an application in execution, and governed by Article 182 of the Limitation Act, the present application must be regarded as in time.

69. It was because there was no finding in the judgment of the lower appellate Court upon the question as to whether such previous application for execution had been really filed and whether there was in that previous execution application an application for possession, that a remand to the lower appellate Court became necessary; otherwise, had there been a finding, no remand would have been necessary.

70. I have therefore no doubt in my mind that it was not mere expression of a view by his Lordship the Chief Justice but a clear and binding decision on the point that the article applicable to the present case was Article 182 of the Limitation Act. As regards the form of the order of remand I think there can be no doubt on reading the whole judgment that the order of remand directed the lower appellate Court to come to a finding of fact and then to decide the case having regard to the decision on the point of law already arrived at by this Court. This view is supported by the form of the decree drawn up in that appeal. I think no inference can be drawn from the words" I agree to the order proposed" used by Mr. Justice Jwala Prasad. His Lordship apparently agreed with the Honble the Chief Justice in his decision on the point of law, otherwise he would certainly have expressed his views on the point if he held a different view.

71. I am therefore of opinion that it is no longer open to contend in this case that the proper article applicable is Article 181. I would therefore dismiss this appeal on this ground.