JUDGMENT
1. This appeal arises out of an application for restitution of property made under Section 144, Civil P.C., by Lieutenant James B.R. Skinner, executor and legal representative of the estate of Mrs. Alice Georgina Skinner against Robert Hercules Skinner, Colonel S.E. Skinner administrator to the estate of Richard Boss Skinner and one T.I. Skinner. The litigation which has given rise to the present appeal before us can briefly be stated as follows : One Richard Ross Skinner owned extensive properties in the Punjab as well as in the United Provinces. He died intestate in the year 1913 and the properties left by him devolved upon his brother, George C. E. Skinner, and his sister, Alice Georgina Skinner, in equal shares. At the time of his death, Richard Ross Skinner was indebted to the Delhi and London Bank Ltd. Delhi and administration of his estate was granted to one Mr. Angelo, the Manager of the aforesaid Bank. On 18th June 1918, while the estate was still under administration, George C.E. Skinner executed a deed which purported to be a deed of sale in favour of Robert Hercules Skinner, under which the properties now in suit were transferred to Robert Hercules Skinner. It would seem that George G.E. Skinner claimed to be the sole heir of Richard Ross Skinner and fully entitled to make transfers of the entire estate of the deceased whose estate at the time of the deed was under administration. We find that in the deed executed, one paragraph runs as follows:
(7) That the said vendor declares that he is the sole heir of the said property : but should other heirs be established...by order of any Court, the vendor is not responsible.
2. In December 1919 George C.E. Skinner died intestate and on 11th February 1921, Robert Hercules Skinner filed a suit for specific performance of the agreement of sale dated 18th June 1918, and also for possession of the properties in suit. The suit was resisted by the defendants in that case. One of the defendants was Mrs. Alice Georgina Skinner, who had claimed that she was entitled to one-half share in the estate of Richard Ross Skinner. One Thomas Skinner was made administrator-ad-litem of the estate of George C. E. Skinner, deceased. Major Stanley E. Skinner was also substituted in place of Mr. Angelo as the administrator of the estate of Richard Ross Skinner. Mrs. Alice Skinner died during the pendency of the case and the name of Lieutenant James B. B. Skinner was substituted in her place as her executor. The suit was dismissed by the trial Court. Against that decree an appeal was preferred to the High Court. By its judgment dated 22nd January 1926, this Court allowed the appeal, set aside the decree of the first Court and passed a decree in favour of Robert Hercules Skinner in the following terms:
1. The plaintiff to deposit in Court for payment to James R.R. Skinner the following amounts namely : (a) Rupees 10,000 with interest at Rs. 6 per cent, per annum from 19th August 1921 till the date of deposit, (b) Rupees 39,367-11-0 with interest at Rs. 6 per cent, per annum from 20th October 1924 till the date of the deposit. 2. The above amounts to be deposited in by the plaintiff in one lump sum within three (3) months from the date on which the administration of the estate of Richard Ross Skinner by the administrator Major Stanley B. Skinner is completed by the acceptance by the High Court of the final administration account to be filed by the said administratoRule 3. That upon such deposit being made by the plaintiff in the manner and within the time above provided, Major Stanley E. Skinner, the administrator-ad-litem of the estate of G.C.E. Skinner, shall join in executing in favour of the plaintiff a conveyance of the interest of G.C.E. Skinner in the estate of Richard Ross Skinner as it stands after the administration has been completed. 4. That the parties to the suit and to this appeal do bear their own costs in both the Courts. 5. That if the plaintiff fails to deposit in Court the sum above mentioned within the time limited above, this suit and appeal shall stand dismissed with costs to the defendants in both Courts including in this Court-fees on the higher scale.
3. This judgment of the High Court is printed at pp. 289 to 291. Against the decision of the High Court, an appeal was preferred to His Majesty in Council. The judgment of their Lordships of the Privy Council See A.I.R. 1929 P.C. 269 dated 16th July 1929 is printed at pp. 333 to 337. The appeal was allowed and the decree of the High Court was set aside and the order passed by the first Court dismissing the plaintiff's suit was upheld. It appears that during the pendency of the appeal before His Majesty in Council, Colonel Stanley E. Skinner who was in possession of the estate of Richard Ross Skinner as administrator handed over one half-share in it to Robert Hercules Skinner and one-half share to Mrs. Alice Georgina Skinner who was his own wife. He purported to have done this under the directions given by the High Court in its decree to which a reference has already been made. After the decision of their Lordships of the Privy Council dated 16th July 1929, Lieutenant James Skinner made an application to this Court under the provisions of Rule 15, Order 45, Civil P.C., on 20th February 1930. This rule relates to obtaining execution of any order of His Majesty in Council. Such an application has to be made to the High Court. The application made by Lieutenant James Skinner is at pp. 355 and 356. The prayer made in this application was:
It is therefore prayed that Rs. 7,989-2-10 the aforesaid costs may be taxed arid the decree may be transmitted to the Subordinate Judge, Meerut, for execution of costs and for enforcement of the order of His Majesty in Privy Council by restitution, etc.
4. It appears that the prayer for 'restitution, etc.,' was included in the prayer because of the view taken in this Court in Damodar Das v. Birj Lal A.I.R. 1915 All. 434, where it was held that:
The word 'execution' as used in Order 45, Rule 15 is intended to cover a case of restitution as well as a case of enforcement of a decree for possession or the like passed for the first time in the case of an appeal to His Majesty in Council, and a person who desires to obtain execution of any kind, whether by way of restitution or otherwise, must apply in the first instance to the Court indicated by Rule 15.
5. This Court by its order dated 28th March 1930, which is printed at p. 361 decided what the total amount due to the applicant as costs was and then directed that the order of His Majesty in Council be transmitted to the Court of the Subordinate Judge of Bulandshahr for compliance. The order is silent as regards the prayer for 'restitution, etc.' From the record it appears that Robert Hercules Skinner raised a contention that the order of His Majesty should be transmitted to the Court of the Subordinate Judge sitting in Muzaffarnagar (see para. 26, p. 359). Now it may be stated here that the suit had been tried by a Court at Meerut. Before the application under Rule 15, Order 45, Civil P.C., was made, there had been a change in the territorial jurisdiction. The Meerut Court had ceased to have jurisdiction over property situate in Sikandrabad Tahsil. We are justified in presuming that this matter was brought to the notice of this Court and it, therefore, directed that the order of His Majesty in Council be transmitted to the Court of the Subordinate Judge of Bulandshahr for disposal.
6. After the order of the High Court, Lieutenant James Skinner made an application to the Court of the Subordinate Judge of Bulandshahr under Section 144, Civil P.C., for restitution. This application was made on 30th April 1930, and is printed at pp. 1 to 3. In this it is mentioned that a separate application for execution so far as costs are concerned has been made under Rule 11, Order 21, Civil P.C. Robert Hercules Skinner resisted this application for restitution on several grounds. The learned Judge of the Court below rejected his defence and has passed an order for restitution and it is against that order that the present appeal has been preferred.
7. It may be stated at the very outset that there is no merit in this appeal. The highest Court in the Empire has passed a decree holding that Robert Hercules Skinner got no title whatsoever in the properties in suit under the deed set up by him. But in spite of the decree of their Lordships of the Privy Council, the applicant wishes to retain the property if he can. His defence is thoroughly dishonest; but he has raised a number of technical pleas and it is contended on his behalf that in spite of the decree against him he has a right to retain the properties in suit and we have to decide as to whether or not, the contentions raised on his behalf are well founded. We will now proceed to consider the pleas that have been raised on behalf of Robert Hercules Skinner which have been pressed before us in defence to the application praying for restitution made by the opposite party under the provisions of Section 144, Civil P.C. While the suit which has given rise to this application was still pending in the Meerut Court, the Government made arrangements under which there was re-distribution of territorial jurisdiction. The notification of the Government is printed in the Government Gazette, United Provinces of 5th November 1921 at p. 1292, part 1, and runs as follows:
Miscellaneous.
31st October 1921.
No. 1416/VII-471 - Whereas it is advisable to alter the existing arrangements for the administration of civil justice in the districts of Aligarh, Bulandshahr and Meerut, now in exercise of the Beveral powers conferred by the enactments specified in the third column of the schedule appended hereto, and with the previous sanction of the Governor General in Council where such sanction is required by any of the said enactments, and in supersession or modification, as the case may be of all previous notifications or orders on the subject so far as they are inconsistent with the said schedule, in particular of Notification No. 405/VII-83, dated 28th March 1913, and with effect from the first day of November 1921, the Governor in Council is pleased to do the acts specified in the second column of the said schedule.
Provided that nothing in this notification shall affect suits or cases which may be pending in the Courts, mentioned at serial No. 2 of the schedule on the first day of November, 1921.
8. It appears that the result of this notification was that all future work relating to the properties situate in Sikandrabad Tahsil was to be henceforth done by the Courts in Bulandshahr District and not by any of the Meerut Courts. The notification also further enacted that suits or cases which may be pending in the Courts of Meerut relating to Sikandrabad Tahsil were not to be affected in any manner by it. As on the date from which this notification came into force, the suit which has given rise to this application before us was pending in the Meerut Court, it was not affected by that notification. In spite of the notification, the Subordinate Judge of Meerut was competent to try the suit and did try it in fact.
9. The first question which we are asked to decide is as to where in the circumstances mentioned above, the application for restitution under the provisions of Section 144 should have been made. In other words, we have to decide whether this application should have been made to the Court which decided the suit or to the Court within whose jurisdiction the property in suit is situate, or a part thereof. The second question is whether an application under Section 144 is to be treated as "a new business" or "old business".
Section 144 enacts as follows:
1. Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, 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; and, for this purpose, 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 such variation or reversal.
2. No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).
10. It will be seen that the Code of Civil Procedure does not define what is the "Court of first instance" when the "Court of first instance" has lost territorial jurisdiction. The matter came up for consideration in Panchapakesa Ayyar v. Natesa Pattar A.I.R. 1926 Mad. 813. A learned Judge of that Court held that when the "Court of first instance" has lost territorial jurisdiction, an application to the Court within whose jurisdiction the territory has been transferred will also be treated as the "Court of first instance" within the meaning of Section 144, Civil P.C.
11. The learned Judge treated an application for execution on the same footing as an application under Section 144, Civil P.C., and expressed an opinion that the Court must proceed upon some general principle as laid down in Section 37(b) in interpreting the phrase "the Court of first instance" which would apply even to cases where the Court of 'first instance has been abolished and also to cases where the Court of first instance has ceased to have jurisdiction. This ruling, however, does not help us. It may be remarked that so far as our High Court is concerned, it has been laid down that applications for restitution are not applications for execution. Section 37, Clause (b) on which the learned Judge deciding the Madras case relied is applicable purely to applications for execution. The question as to whether or not applications for restitution were applications in execution was very elaborately and exhaustively discussed, by my Lord the Chief Justice in Parmeshwar Singh v. Sitla Din Dube A.I.R. 1934 All. 626. It is not at all necessary for us to mention in this Judgment the weighty reasons given by the learned Chief Justice for holding that applications for restitution were not applications in execution. As the above mentioned Madras ruling proceeds on the assumption that an application for restitution is an application for execution, it cannot be of much help to us.
12. Another case to which reference might be made is Lakshmana Goundan v. Subramania Aiyar A.I.R. 1921 Mad. 103. A Bench of two learned Judges of the Madras High Court held in that case that the expression "Court of first instance" in Section 144, Civil P.C., means the Court which passed the decree, or if that Court has ceased to exist, the Court to which the proceedings are transferred in substitution for the Court which passed the decree. We might say so with respect that we agree with the observations of the learned Judges that the expression "Court of first instance" as used in Section 144, Civil P.C., is used in contradistinction to a "Court of appeal". In other respects this ruling also does not help us. In that case the Court which passed the decree had ceased to exist and a new Court had been substituted in its place. In the case before us, the Court which passed the decree still exists.
13. Another case on this question is Abdul Hussain Khan v. Bibi Sona Dero (1913) 7 S.L.R. 19. This case, however, is not directly in point. The two learned Judges who decided the case held that the Court to which a decree has been transferred for execution has the same powers of restitution under Section 144, Civil P.C., as the Court of first instance. The facts in that case were, however, different. A decree had been transferred for execution to a Court. The prayer for restitution appears to have been incorporated as a part of the decree which had to be executed.
14. It is, therefore, clear that the above mentioned three cases do not help us in determining the question which we have before us.
15. It may be pointed out here that there is considerable divergence between the views prevailing in Calcutta and Madras High Courts as regards the question as to where an application for execution should be made when there has been a territorial re-distribution. The Calcutta High Court has consistently taken the view that both the Courts which passed the decree and the Court which had since obtained jurisdiction over the property, could entertain an application for execution of the decree. In Madras High Court the view has been changing. It was first held that the Court which passed the decree had jurisdiction to entertain an application though the property had been transferred to the jurisdiction of some other Court and the Court which passed the decree was the only Court to which the decree-holder was to apply for execution. This question came up before a Full Bench of the Madras High Court, in view of the conflicting decisions in that Court, in Seni Nadan v. Muthusamy Pillai A.I.R. 1920 Mad. 427. The view taken by the Full Bench was that the Court which passed the decree was a proper Court for execution. The principal judgment was delivered by Wallis, C.J., and it would appear that he took the view which prevails in the Calcutta High Court as correct. The following observations made by him in his judgment would go to support this. At p. 832 the learned Chief Justice stated:
The jurisdiction of the Court which passed the decree was sufficiently recognized by the decisions, as I have pointed out, and indeed had never been doubted upto that time and there was therefore no need to re-affirm it. The case of direct application to the Court to which the area had been transferred was met by the enactment of the new Section 150 which was in terms wide enough to authorize that Court to entertain in the first instance any application which might have been made to the Court which passed the decree.
16. At p. 833 he again observed as follows:
That, it seems to me, was the scheme of the Code as held in Panduranga Mudaliar v. Vythilinga Beddi (1907) 30 Mad. 537 until 1908 when Section 150 then conferred upon the Court of the transferred area power to entertain the application in the first instance; but this cannot be read as taking away from the Court which passed the decree the power which it then had according to the unbroken current of authorities for many years which the Legislature must be taken to have recognized.
17. In the concluding paragraph of his judgment, the learned Chief Justice stated as follows:
Both on principle and on the balance of authority and convenience, my answer is that the Court which passed the decree is a proper Court for the purpose mentioned in the question referred to us.
18. It is, therefore, clear that the1 view taken by the Pull Bench in the above, mentioned case was that an application for execution can be made in both the Courts. After this came the case in Ramier v. Muthu Krishna Ayyar A.I.R. 1982 Mad. 418. In this case a contrary view was expressed and the view expressed in Seni Nadan v. Muthusamy Pillai A.I.R. 1920 Mad. 427 by Wallis, C.J. that an application for execution could be made to both Courts was not approved and it was laid down that the only Court to which an application for execution could be made after transfer of territory was the Court which passed the decree.
19. We have referred to the above mentioned Madras cases in deference to the able arguments of learned Counsel appearing for the appellants who strongly contended before us that so far as procedure was concerned, there was no-difference between an application for execution and an application for restitution made under Section 144, Civil P.C.
20. The first question which we are concerned with is as regards the meaning of the expression "The Court of first instance". On this question we are perfectly, clear in our mind that this expression is used in contradistinction to the expression "Court of appeal". In our opinion, the expression "Court of first instance" as used in Section 144 means the Court which; passed the decree or if that Court has: ceased to exist, the Court to which the proceedings are transferred in substitution for the Court which passed the decree.
21. This view does not solve the difficult question which we have got to decide. "We have already set forth at length the notification which the Government had issued. In our opinion, what the Government decided was that after the date fixed, all cases connected with properties in Tahsil Sikandrabad would be instituted in the Court in the District of Bulandshahr and not in the District of Meerut as heretofore. In our opinion, the notification had no reference whatsoever to proceedings connected with cases which had already been decided by the Courts in Meerut relating to properties situate in the Tahsil of Sikandrabad. We are further clearly of opinion that the notification expressly excluded all pending cases from its operation. The words used are:
Provided that nothing in this notification shall affect suits or cases which may be pending in the Courts, mentioned at serial No. 2 of the schedule, on the first day of November 1921.
22. It is conceded before us that when this notification was issued, the suit which has given rise to this application for restitution was pending in the Court of the Subordinate Judge at Meerut. Having, regard to the proviso referred to above, the Meerut Court had full power to try it and the notification did not affect it in any manner. Learned Counsel who argued the case on behalf of the respondents very frankly admitted before us that the Meerut Courts had full jurisdiction to try the case and that the notification referred to above did not in any way affect the jurisdiction of the Meerut Court to try the suit. He has however contended before ns that applications for restitution are not applications for execution according to the view prevailing in this Court. This argument of learned Counsel for the respondents has to be accepted in view of the clear pronouncement by this Court in a recent Full Bench case reported in Parmeshwar Singh v. Sitla Din Dube A.I.R. 1934 All. 626. For the purpose of deciding this case we may assume that an application for restitution under Section 144 is not an application in execution. The contention raised on behalf of the respondents is that such an application comes within the purview of the term 'future business' and therefore it should have been made to the Court within whose territorial jurisdiction a part of the property in suit lies. After a consideration of this question, which is not free from difficulty, we have arrived at the conclusion that this contention cannot be accepted. We do not think that an application under Section 144, Civil P.C., can be correctly described as 'future business'. Learned Counsel for the respondent in the first instance relies on the provisions of Section 17, Bengal, Agra and Assam Civil Courts Act 12 of 1887 which enacts as follows:
Where any civil Court under this Act has from any cause cased to have jurisdiction with respect to any case, any proceeding in relation to that case which, if that Court had not cased to have jurisdiction, might have been had therein, may be had in the Court to which the business of the former Court has been transferred.
23. In our opinion, this section does not support the contention of learned Counsel for the respondents. The words used are:
Where any civil Court under this Act has from any cause ceased to have jurisdiction with respect to any case....
24. Now in the case before us the Courts at Meerut did not cease to have jurisdiction in respect of the case which has given rise to this application. On the other hand, the notification makes it clear that it will have no application to the cases which were pending in the Meerut Courts at the time when it was issued. The original suit giving rise to this application was never transferred from the Meerut Courts and the Courts in that district always possessed the jurisdiction which they had and which had never been taken away. The section refers to proceedings in relation to any case which has from any cause ceased to be within the jurisdiction of a Court. In the present case, the proceedings for restitution cannot be said to be "any proceeding in relation to that case over which a civil Court has from, any cause ceased to have jurisdiction".
25. It is admitted before us that the civil Court which passed the decree in the suit is still in existence and at the time when the suit was instituted a small fraction of the property in suit was within the jurisdiction of that Court. Now under the notification referred to above, the tahsil in. which that small fraction of the disputed-property was situate has been placed within the jurisdiction of the Bulandshahr Courts. The Bulandshahr Courts have full jurisdiction to entertain all 'future business' connected with that tahsil; but we apprehend that the Courts in that district have no power to deal with the matters arising out of the cases which were pending at the time of the notification and which were expressly excluded from the notification.
26. In our opinion, an application for restitution under Section 144 cannot be treated as 'future business.' We think that the effect of the notification referred to above is that all future cases are to be instituted in the Courts of the Bulandshahr District; but the Meerut Courts would still have, jurisdiction to entertain applications in connexion with matters arising out of cases already decided and cases pending at the time of the notification. It is true that a cause of action for an application under Section 144 may arise when the order of the Court below is reversed in appeal but nevertheless it is an application in relation to a case which a Court has already decided. According to the provisions of Section 144, an application for restitution has to be made to the Court which decided the case. The case before us is not one where that Court has ceased to exist. Here the Court is still in existence. Only owing to the re distribution of territorial jurisdiction it cannot itself order execution, of the decree in respect of a small item out of the properties in suit. As we have already stated, the major portion of the property in suit is situate in the Punjab. As the Court of first instance is still in existence, it has, in our opinion, power to. entertain an application for restitution and to transfer the case for enforcement of its order by way of execution to the Bulandshahr Courts or to the Punjab Courts, if it considers such a step to be necessary. Reliance was also placed on the provisions of Section 150, Civil P.C. This section enacts that:
Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.
27. It appears that this section has been framed to meet the difficulties which sometimes arise, on account of the abolition of any Court, or the transfer of any local area from the jurisdiction of one Court to that of another in consequence of which the business of one Court is transferred to another Court. We wish to lay emphasis on the words 'the business of one Court is transferred to another Court'. In our opinion this section has no application to the case before us. The present case is not one in which the entire business of one Court has been transferred to another Court owing to the abolition of the former Court. Nor is it a case in which it can be said that the effect of the notification was to transfer the case from the Meerut Court to that of Bulandshahr. It is true that the word 'transfer' in this section is not confined only to transfer made under special provisions of the Code of Civil Procedure, such as Section 24, but it covers transfers of a local area from the jurisdiction of one Court to another. But the case which has given rise to this application for restitution was neither transferred under any notification nor under any special provisions of the Code of Civil Procedure. On the other hand, as we have already pointed out, the notification mentioned above expressly reserved the jurisdiction of the Court in respect of all the pending cases and the one before us was certainly pending at the time when the notification was issued.
28. The case would have been entirely different had the notification mentioned above declared that the business of the Meerut Courts was transferred to the Courts at Bulandshahr. But as we have already pointed out, this is not so. The Court in which the case was pending is still in existence. The notification mentioned above did not interfere with the power of that Court to continue to try the suit which has given rise to this application. In our opinion therefore it is obvious that the Court which tried the case is the Court of first instance to which an application for restitution should have been made. That Court is fully competent to direct restitution on being informed that the decree passed by it has been reversed by their Lordships of the Privy Council. It is true that after that Court had passed a decree in the suit, the Sikandrabad Tahsil, in which the property in suit is situate, was transferred within the territorial jurisdiction of the Bulandshahr Courts; but nevertheless the Court of first instance which tried the suit continued to be 'the Court of first instance'. That Court, in our opinion, is fully competent to pass an order of restitution and then to transfer the case to Bulandshahr Courts or to Punjab Courts for directing that the plaintiff be put in possession of the disputed properties.
29. For the reasons given above, we hold that as the case which has given rise to the present application for restitution was never transferred from the Meerut Court, under the above-mentioned notification, to the Bulandshahr Court, the Court which tried the suit and passed the decree is the only Court which can entertain an application for restitution as it was, in our opinion, the Court of first instance. We further hold that an application for restitution made under the provisions of Section 144, Civil P.C., cannot be styled as 'future business'. The next important question which has to be considered is about the effect of an order passed by this Court when an application under Rule 15, Order 45, Civil P.C., was presented to this Court by the plaintiff. We have already referred to the facts in respect of this matter in our judgment previously. The application which the plaintiff made to this Court in accordance with the provisions of Rule 15, Order 45 is printed at pp. 355 and 356. In the application it was prayed The order of His Majesty in Council be transmitted to the Subordinate Judge, Meerut, for execution of costs and for enforcement of the order of His Majesty in Privy Council by restitution, etc'.
30. In defence (see p. 359) in para. 26, it was submitted that:
As on the date of the suit there was no Subordinate Judge's Court in Muzafiarnagar, the Subordinate Judge for Muzaffaraagar used to sit in Meerut and the suit had to be instituted in Meerut but now a separate Subordinate Judge's Court has been sitting in Muzaffarnagar and the papers should be sent there for execution.
31. From the record, it is not clear how this Court directed that the order of His Majesty in Council should be transmitted to the Subordinate Judge of Bulandshahr [see p. 361]. Probabilities are that it must have been brought to the notice of their Lordships who decided the application that the territory in which a portion of the property in suit is, had been transferred within the jurisdiction of the Bulandshahr Courts and therefore the learned Judges transmitted the order to the Court of the Subordinate Judge of that district. In the order of the Court however there is nothing to show that this was the reason for sending the order of His Majesty in Council to the Bulandshahr Courts. We would not, however, be wrong in presuming that this was the reason why the learned Judges transmitted the order to the Subordinate Judge of Bulandshahr. The question which now arises for our consideration is whether having regard to the above mentioned order, another Bench of this Court can question an order previously passed by a Bench of the same Court on 28th March 1930, which is printed at p. 361. Learned Counsel appearing for the appellant has contended before us that we do possess jurisdiction to decide the question whereas on behalf of the respondent it has been urged that the order passed by this Court sending the order of His Majesty in Council to the Bulandshahr Court is final and cannot be questioned. We proceed to consider this question. Order 45, Rule 15 enacts, among other things, as follows:
(1) Whoever desires to obtain execution of any order of His Majesty in Council shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to His Majesty was preferred. (2) Such Court shall transmit the order of His Majesty in -Council to the Court which passed the first decree -appealed from or to such other Court as His Majesty in Council by such order may direct, and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.
32. In Damodar Das v. Birj Lal A.I.R. 1915 All. 434 it was held by a Bench of two learned Judges of this Court that:
The word "execution" as used in Order 45, Rule 15, is intended to cover a case of restitution as well as a case of enforcement of a decree for possession or the like passed for the first time in the case on an appeal to His Majesty in Council, and a person who desires to obtain execution of any kind, whether by way of restitution or otherwise, must apply in the first instance to the Court indicated by Rule 15.
33. In view of a subsequent decision in which it has been clearly laid down that applications under Section 144, Civil P.C., are not applications in execution, the correctness of the view expressed in this case is doubtful. We are bound by the recent Pull Beach decision reported in Parmeshwar Singh v. Sitla Din Dube A.I.R. 1934 All. 626 in which it has been clearly laid down that an application for restitution under Section 144 is not an application in execution. It would thus appear that to an application for restitution the provisions of Rule 15, Order 45 are inapplicable. In Rule 15, Order 45, the words used are:
Whoever desires to obtain execution of any order of His Majesty in Council shall apply....
34. Now when a person makes an application under Section 144, Civil P.C., he does not desire to obtain execution of any order of His Majesty in Council. There is no order of His Majesty in Council in his favour. The decree of their Lordships of the Privy Council does not direct that the plaintiff is to get back possession. It is true that the plaintiff has become entitled to restitution but this is distinct from executing a decree of the appellate Court. If the plaintiff had become entitled to a relief granted to him in express words by the decree passed by their Lordships of the Privy Council, then it could have been argued that he was applying for the execution of the decree which has been passed in his favour by the highest Court in the Empire. But when he applies for restitution, he does not seek to enforce the terms of any decree. Every Court has an inherent right to make a restoration if it finds that a decree passed by it has been reversed in appeal. The principle of the doctrine of restitution is that on the reversal of the judgment, the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party for what he had lost. That obligation, it is the duty of the Courts to enforce. We apprehend that when a person who succeeded in his appeal before His Majesty in Council applies for restoration, there is no necessity for him to make an application under the provisions of Rule 15, Order 45, Civil P.C. It is his right to approach the Court which passed the decree, that is to say the Court of first instance, and claim that in view of the reversal of its decree by a higher Court, it should pass an order restoring him to the position in which he was before the decree of the Court of first instance was passed. Similarly the Court of first instance has an inherent power which is now described in section 144, Civil P.C., to direct restitution. We do not think that there is any law under which a person claiming restitution is compelled to first make an application to the High Court under the provisions of Rule 15, Order 45, Civil P.C. It is only when he has to make an application for 'execution of any order of His Majesty in Council' that he has to apply in the first instance to the High Court whose decree has been reversed in appeal. When how ever, he only seeks restitution to which he has become entitled by reason of the decree of the Privy Council, then it is not necessary that he should first make an application to the High Court. We may be permitted to refer here to the observations made by Sen, J. in Sohan Bibi v. Baijnath Das A.I.R. 1928 All. 293 at p. 773 which are as follows:
The order of the Privy Council did not contain any directions for the restitution of the Bums of money recovered by the judgment-debtors appellants in the previous execution proceedings or for the payment of the said sum with interest at certain rate. It is not controverted, and indeed it cannot be disputed, that the right of restitution is a right which logically follows from the right accruing to a party in whose favour a decree has been passed by the Privy Council reversing the decree of the High Court, and the said right is one which is consequential upon the reversal of the decree of the High Court.
35. As we have already pointed out the Privy Council did not pass any decree which the plaintiff seeks to enforce. He claims restitution as a result of the decision of their Lordships of the Privy Council in his case which is quite a different thing from a prayer for execution of a decree. If he had applied for execution of his decree passed by their Lordships of the Privy Council, then proceedings under Rule 15, Order 45 would have been necessary; but here he is only seeking restitution and, in our opinion, he was entitled to make an application to the Court of first instance for restitution without making an application under the provisions of Rule 15, Order 45, Civil P.C., to the High Court whose decree was reversed by their Lordships of the Privy Council. For the reasons given above, it appears to us that the order of the High Court made under the provisions of Rule 15, Order 45, Civil P.C., does not prevent the appellant from raising the plea that the Court below was not competent to decide the application of the plaintiff. The question as to which Court was competent to hear the application under Section 144, Civil P.C., has not become res judicata between the parties. It was never raised and, in our opinion, could not be raised before the High Court. The proceedings-under the provisions of Rule 15, Order 45 appear to be of a purely ministerial character as observed in Premlall Mullick v. Sumbhoonath Roy (1895) 22 Cal. 960 at p. 972.
36. It will be noticed that although provisions are made in Rule 15, Order 45 for "execution of any order of His Majesty in Council", yet there is no mention in it as to where an application for restitution has to be made. For that we have to look to-the provisions of Section 144, Civil P.C., which declares that such applications have to be made to the Court of first instance. We must therefore relunctantly hold that Rule 15, Order 45, Civil P.C., does not prevent a person entitled to restitution from going to the Court of the first instance to claim a relief. In our opinion, the view taken by the Court below that it had power to entertain restitution proceedings because the order of His Majesty in Council was transferred to it by the High Court, is not correct. In our view the High Court entertaining an application under Rule 15, Order 45, Civil P.C., has no power to decide to which Court an application for restitution has to be made. Aright to claim restitution arises in favour of a person when a decree passed against him by the Court of first instance is reversed in appeal and where such a decree is passed by their Lordships of the Privy Council, then it is open to him to go and make his application to the Court whose decree is reversed for redress. He is not compelled, under the law, to make an application to the High Court. An application to the High Court is only necessary where the applicant claims execution of any order of His Majesty in Council.
37. For the reasons given above, we hold that the Court below had no jurisdiction to entertain the present application for restitution. Two other questions were also raised in the case before us. One was whether the applicant was entitled to claim possession and it was contended on behalf of the appellant that as possession had not been taken from him he cannot apply for restitution. The other question was that so far as the Punjab property was concerned the defendant-respondent was entitled to remain in possession in view of certain provisions of the Registration Act. As the order passed by the Court below is without jurisdiction we consider it unnecessary to go into these matters. These points can come up for consideration only where there has been a decision as regards them by a Court of competent jurisdiction. We would like to mention here that learned Counsel for the respondent contended before us that in view of the provisions of Section 21, Civil P.C., it was not open to the appellant to raise before us the plea as to the jurisdiction of the Court below. In our opinion, this contention cannot be accepted. Section 21, Civil P.C. enacts that:
No objection as to the place of suing shall be allowed by any appellate Court or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
38. A person taking such an objection has to prove, in view of the provisions of Section 21, Civil P.C., that he took his objection 'as to the place of suing' at the earliest possible stage. But in the case before us, however, it cannot be said that the appellant was taking objections as to the place of suing. He was contending that the Court below had no jurisdiction whatsoever to entertain an application for restitution under the provision of Section 144, Civil P.C., and that the only Court which could order restitution was the Court of first instance which had decided the suit giving rise to the application. Section 21, Civil P.C., does not apply to cases of want of pecuniary jurisdiction, or exclusive jurisdiction. Its application is confined only to objections regarding want of territorial jurisdiction. The appellant before us is not taking an objection as regards want of territorial jurisdiction in the Court below; but his contention is that the Court which had decided the suit had exclusive jurisdiction to entertain an application under Section 144, Civil P.C. In Zamindari of Ettiyapuram v. Chidambaram Chetty A.I.R. 1920 Mad. 1019 a Full Bench of the Madras High Court laid down that the provisions of Section 21, Civil P.C., apply to objections regarding want of territorial jurisdiction only. We may mention here that in Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore A.I.R. 1919 P.C. 150, their Lordships of the Privy Council held that an objection going to the nullity of the order on the ground of want of jurisdiction, is not an objection under the provisions of Section 21, Civil P.C. In the case before us, it is perfectly clear that the objection raised by the appellant is that the Court which had decided the case had exclusive jurisdiction to entertain the application under Section 144, Civil P.C., and no other Court could entertain such a suit even though it was competent to try a suit relating to the property in suit on the ground that that property was within its territorial jurisdiction. We are, in these circumstances, clearly of opinion that Section 21, Civil P.C., does not help the appellant.
39. The question which we have now to consider is : which is the Court to which the case should be sent back for re-hearing? It may be pointed out that originally the suit which has given rise to these proceedings was instituted in the Court of the Subordinate Judge of Muzaffarnagar sitting at Meerut. Later on it was transferred to the Court of Mr. Abdul Halim, Additional Subordinate Judge of Meerut. He tried the case and decided it. As a result of the Greaven Committee Scheme there was territorial redistribution under which Muzaffarnagar has now a separate Subordinate Judge sitting at Muzaffarnagar. At present according to the civil list, it appears that there are two Subordinate (civil) Judges, at Meerut. Mr. Pearey Lal Banerji who appears for the appellant has stated before us that according to his case the Court of first instance is the Court of the Second Subordinate (civil) Judge of Meerut. Mr. O'Conor's contention all along has been that the Court in Bulandshahr had jurisdiction to entertain proceedings under Section 144, Civil P.C., but he concedes that if this Court holds that the Bulandshahr Court had no jurisdiction then he has no objection to the proceedings being re-heard by the Second Civil Judge of Meerut. We are, therefore, of opinion that the case should be remanded to the Court of the Second Civil Judge of Meerut.
40. For the reasons given above we allow this appeal, set aside the order passed by the Court below and remand the case to the Court of the Second Civil Judge of Meerut with directions that it should hear the parties and then decide the case according to law. As regards the costs in this Court as well as in the Court below we direct that they will abide the result. The court-fee paid in appeal by the appellant will be refunded.