Report No. 27
1. The object of the proposed amendment is to deal with the power of a court to order restitution when a decree is set aside or modified otherwise than on appeal, etc.-that is, in a separate suit. There is a conflict of decisions as to whether section 144 applies in such a case. One view is that it does1-2-3. Another view is that it does not4-5-6. The U.P. Amendment on the subject may be seen.
2. The words "court of first instance" are not literally applicable to such a case. Hence a somewhat elaborate provision in relation to such setting aside, etc., is added.
The question as to whether proceedings under section 144 are execution proceedings or independent and collateral proceedings is one on which there is a conflict of decisions7-8. In many of the decisions, however, on the subject, the point seems to have arisen with reference to the question whether an application for restitution falls under the article in the Limitation Act relating to execution or under the residuary article9-10. It is not, therefore, considered necessary to amend the section in the Civil Procedure Code11.
1. Subrayudu v. Seshasami, ILR 40 Mad 299: AIR 1917 Mad 293.
2. Jagendra v. Hira, ILR 1948 All 62: AIR 1948 All 252 (FB).
3. ILR 27 Pat 873: AIR 1949 Pat 133 (FB).
4. Ashutosh v. Kundal Kamini, ILR 57 Cal 226: AIR 1929 Cal 814.
5. Gopal v. Swarna, AIR 1931 Cal 42 (43).
6. Alfred v. Sirajuddin, AIR 1944 Lah 165 (167).
7. Case law is reviewed in AIR 1958 Punj 134 (FB).
8. See also Bhannath v. Kedarnath, ILR 13 Pat 411: AIR 1934 Pat 246.
9. See C.S. Ratanchand v. Multanmul, AIR 1964 Mys 117 (121-122) (reviews case-law).
10. See also Vasudevan v. Choikutty, ILR (1964) 2 Ker 597 (Dec. 1964).
11. See now M.M. Barot v. P.M. Gokalbhat, (1964) SCN 362, which seems to resolve the conflict.
The present position as to enforcement of decrees, etc., against a surety who has furnished security of his property, would be found discussed in the under-mentioned decisions1-2, which collect the case-law on the subject. As to the proper course to be followed when the security is in favour of the court, see the Privy Council decisions quoted below3.
It is considered that an express provision should be inserted to deal with the power of the court to sell property where the property has been furnished as security. An amendment4 on the subject has been made in the U.P. by the Amendment Act 24 of 1954. (In the U.P., an Explanation has also been added to deal with the case of a person to whom attached property has been entrusted for safe custody.) That aspect is dealt with separately5. Necessary amendment is proposed.
1. Babu Lal v. Hyderabad Municipal Corpn. AIR 1961 AP 413 (418).
2. Jagannatha v. Ramchandra, AIR 1936 Mad 589.
3. Raghubar v. Jai, ILR 42 All 158: AIR 1919 PC 56 (59); Rohani v. Har, AIR 1943 PC 189.
4. Compare discussion in the Report of the U.P. Committee on Judicial Reforms (1950-51), Vol. I.
5. See Order 21, rule 43A (as proposed).
Section 145 and persons to whom attached property is entrusted.
This is dealt with separately1.
1. See Order 21, rule 43A (proposed).
It has been suggested that the section should be amended so as to provide that the Court should not exercise the power under this section where rights of third party have intervened. This would be the ordinary practice1. It is, however, considered, that no such express provision is necessary.
1. See ILR 47 All 44: ILR 54 Mad 184; Hatton v. Harris, (1892) AC 547, and discussion in Bela Devi v. Bon Behary Roy, AIR 1952 Cal 86 (90).