TMI Blog1973 (2) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is seen to have been withdrawn by the deceased plaintiff during the trial. The High Court finally disposed of the suit on 11-2-1966 and thereafter application for recovery of this amount from the legal representatives of the plaintiff was filed by the legal representatives of the first defendant. That application was so filed on 5-2-1969 within three years of the final decision by the High Court. The legal representatives of the plaintiff, inter alia, contended that this application was barred by limitation. The Court of first instance denied relief on the ground that the defendants could have sued the plaintiff for reimbursement of the amount and in the circumstances the Court will not grant restitution in exercise of the inherent powers. It also found that the petitioners have not proved that they have deposited the amounts shown in the petition and that the amount has been withdrawn by the plaintiff. The question of limitation was not considered by the Court. The Court below, before which an appeal was filed, found that, the party having invoked the inherent jurisdiction of the Court, no appeal lay to that Court The legal representatives of the deceased defendant, whom I s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to grant restitution. 3. Very elaborate arguments were heard in this revision and very many interesting questions were raised. According to counsel for the respondents, for a variety of reasons there is no scope for invoking the inherent power of the Court. Even if this is a case in which the Court could exercise inherent power, according to counsel for the respondents, any application for restitution should have been made within the period provided in Article 137 of the Limitation Act. 1963 corresponding to Article 181 of the Indian Limitation Act. 1908. Though the application has been made within three years of the decision of the High Court that is not the decision which gave the cause of action to the petitioners. They should have come in, if at all, within three years of the date of the trial Court decree dismissing the suit. If that be not the case, the application would be barred by limitation. This is the main defence to the motion made by the petitioners by way of restitution. But according to Sri. Govinda Wariyar appearing for the petitioners, the question of applying Article 181 or 137 would not arise at all. Counsel would 'Contend that whenever inherent powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat some wrong has been done and that has to be corrected and the provisions in the Code may not meet the situation, inherent powers may be exercised. It cannot be used in such a manner as to render the provisions of the Code nugatory by applying it to all cases covered by the Code- That is why it is said that the exercise of the power is discretionary. The court always considers whether, in the interests of justice, it is necessary to invoke its power. The court must bear in mind that it is a power to be exercised only when there are compelling circumstances to do so. 6. It may be that the court itself has done a wrong. Such may be cases where, as for instance, the court pays over money belonging to one party to another. In such cases the wrong must certainly be set right. There may be cases where a wrong is caused to a party not by the court but by the process of court. Though the court itself may not have done any wrong to the party, interests of justice require the court to set right the wrong caused because the court would like to give relief against abuse of its own process. There may be cases not covered by the situations mentioned, but where justice requires that the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context. Article 181 was the residuary article in the repealed enactment. It applied to cases to which no other article applied. That none of the specific articles in the schedule to the Limitation Act applied to a case of restitution under the inherent power of the Court is not disputed. The only question is whether Article 181 will have application. If Article 181 has no application, then there is no question of limitation. Of course, whether the Court should interfere because of lapse of considerable time is then a matter relevant to the exercise of the Court's discretionary power. But that is another question. 10. Article 181 of the Indian Limitation Act, 1908 read- Description of application. Period of limitation. Time from which period begins to run. 181. Applications for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908 (V of 1908). Three years. When the right to apply accrues. Article 137 of the Limitation Act, 1963 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to and followed in subsequent decisions of that Court. I need refer only to the decisions in Bombay Gas Co. v. Gopal Bhiva, AIR 1964 SC 752 and Pravita Bose v. Kumar Rupendra Deb Raikat. (AIR 1965 SC 540). 12. I am referring to this aspect because the case of the petitioners is that any person invoking the exercise of the inherent powers of the Court is not moving an application under the Code and if it is an application de hors the provisions of the Code. Article 181 of the 1908 Code will have no application with the consequence that there will be no period of limitation for such application, This requires the consideration of the question whether the application such as the one filed by the petitioners here is an application under the Code. It is not unusual to see applications described as applications under Section 151 of the Code. A casual study of Section 151 of the Code is sufficient to show that, strictly speaking, no application is contemplated under Section 151 of the Code. That is because no power is conferred on the Court under that Section. It saves existing power. Even such saving appears to be unnecessary because so long as the Code does not limit the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on the Court any power as such. It merely declares the inherent power of the Court which undoubtedly exists and the power is not limited or affected by anything in the Code in order to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of Court. It is well established by now that an application invoking such inherent power is not one made under the Civil Procedure Code. AIR 1953 SC 98 though is one of an application under Section 38 of the Companies Act and not one under the Code, the principle deducible from it is that Article 181 of the Limitation Act would be inapplicable to any application which is not made under the Code. AIR 1964 SC 752 related to an application made under Section 33-C(2) of the Industrial Disputes Act. and here again the principle was applied that because it was not an application under the Code, therefore. Article 181 of the Limitation Act would not be attracted. It is true that the application in this case was made under Section 151 of the Code. Even so, it is not an application under the Code. This has been held by the Supreme Court in Manohar Lal v Seth Hiralal, AIR 1962 SC 527. It observed I 'These obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have been answered in favour of the petitioners had the matter arisen for decision under the Limitation Act. 1908. But it is said that the new Act makes ell the difference. It is true that the terms of Article 137 is materially identical with the repealed corresponding article. But to some other provisions of the Limitation Act. 1963 my attention has been drawn. Article 119 in the Limitation Act. 1963 corresponds to Articles 158 and 178 of the repealed Act Besides that article dealing with the applications under the Arbitration Act. 1940, there is a new Article 131 which prescribes a period of limitation even for an application for revision under the Code of Criminal Procedure. It is said that this necessitates a reconsideration of the view taken earlier. That is because, while, earlier, it was only the application under the Arbitration Act other than that under the Code of Civil Procedure that found a place in the schedule to the Limitation Act, under the law as it stands now, even an application under the provisions of the Code of Criminal Procedure finds a place in it This argument may easily be repelled by the same logic as appealed to their Lordships of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion so as to include any petition original or otherwise, should be added. The object is to provide a period of limitation for original petitions and applications under special laws as there is no such provision now. Consequential alterations in the definition of the word 'applicant' should also be made . Though the Law Commission suggested 'Application' to be defined as including 'petitions, original or otherwise' the words original or otherwise are not in the definition. But that may not be material. It is evident that the purpose of incorporation of the definition of the term application is to bring within the purview of Article 181 not only applications under the Code of Civil Procedure but all applications under other special Laws. Counsel for the petitioners would urge that even then it would only be applications under other laws that would come within the scope of Article 181 and not applications made otherwise than under the special laws and also otherwise than under the Code of Civil Procedure. I do not think that that would be the effect. In Article 181 as it stood words of limitation were read into because of the context of that Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal and until the decree is vacated in appeal the consequences of the decree would flow. That is not held in suspense by the mere fact of filing of the appeal. It does not become inoperative simply because there is a danger or peril to the decree, the peril that it may be vacated by the appellate Court. Therefore, the cause of action does accrue in regard to the decree when the decree is passed. The fact that subsequent decrees have been passed confirming the earlier decree makes no difference. To consider it otherwise would yield to anomalous results. For instance, when a decree passed by a Court is intended to be appealed against end for that purpose a copy application is made will the decree cease to be operative? If so. what will happen if the party never files an appeal ? When will the cause of action then revive ? Could it be said that the cause of action would arise not on the passing of the decree, hut on the expiry of the time for filing an appeal ? That again cannot be determined as it would depend upon the time taken for obtaining a copy of the decree and judgment which must vary from case to case. That may vary from party to party in the same case. 17. Apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Baghubar Dayal. J.. said- No party' has a right to insist on Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so . It referred to the earlier decision of the same Court in Padam Sen v. The State of Uttar Pradesh (1961) 1 SCR 884 = (AIR 1961 SC 218) and approved the following passage in that decision: The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it, These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such order which would affect such rights of a party Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure . The learned Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Court does not confer a corresponding right upon the litigant. It is an inherent duty in the Court and a duty which is not coupled with the right in any one to enforce it. If no right accrues to a party and no party could, as of right, move the Court for exercise of inherent power, then Article 181 would be inapplicable to such a case. 22. For the reasons stated. I am of the view that Article 137 will have no application to a case of a motion made by a party seeking to invoke the inherent jurisdiction of the Court as has been done here. Hence there is no limitation in the case before me. 23. Of course, there remains to be considered whether the inherent jurisdiction of the Court need be invoked in this case. It is not disputed that if the application had been one under Section 144 of the Code of Civil Procedure there would be no limitation. The Supreme Court held that an application for restitution under that section is one for execution. The starting point under Article 182 would be the date of the decree in appeal when there is one. In this case It would be that of the High Court and that would mean that if this application had been under Section 144 of the Code it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
