Himachal Pradesh High Court
Shri Deepak Arora And Another vs Of on 3 September, 2015
Bench: Chief Justice, Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 65 of 2015
Reserved on: 20.08.2015
.
Decided on: 03.09.2015
Shri Deepak Arora and another ...Appellants.
Versus
of
Shri Vijay Khanna ...Respondent.
Coram
rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting? Yes.
For the appellants: Mr. R.L. Sood & Mr. Ashwani Sharma,
Senior Advocates, with Mr. Sanjeev
Kumar, Advocate.
For the respondent: Mr. Ajay Mohan Goel and Mr. Rajesh
Mandhotra, Advocates.
Mansoor Ahmad Mir, Chief Justice.
This Letters Patent Appeal is directed against the
order, dated 02.05.2015, made by the learned Single Judge,
whereby OMP No. 44 of 2015 filed by the respondentJudgment
Debtor in Execution Petition No. 10 of 2013, titled as Shri Deepak
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Arora and another versus Shri Vijay Khanna, came to be allowed
(for short "the impugned order").
.
2. A very important question of law has been raised by
the parties in the present lis. In order to determine the issue, the
narration of brief facts of the case is required.
of
3. Execution Petition No. 10 of 2013 was filed before the
learned Single Judge for the execution of award, dated
rt
01.12.2012, made by the Arbitrator in favour of the appellants
and against the respondent. Notice was issued in terms of Order
XXI of the Code of Civil Procedure (for short "CPC") and
attachment order was passed.
4. Vide order, dated 08.01.2015, the respondent
Judgment Debtor was proceeded exparte and the attached
property was ordered to be put to sale in accordance with the
mandate of Order XXI CPC, constraining the respondent
Judgment Debtor to deposit an amount of ` 4,68,25,228/ with
Collector, Kangra at Dharamshala. Thereafter, the respondent
Judgment Debtor moved OMP No. 44 of 2015 under Sections 144
and 151 CPC with the plea that an error has creptin while
making calculations, the appellantsDecree Holders are entitled to
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` 3,70,49,770.80/ in terms of the award and prayed for refund of
excess amount.
.
5. The said application was resisted by the appellants
Decree Holders on the ground that the respondent has not filed
reply in the Execution Petition despite show cause notice issued
of
in terms of Order XXI Rules 22 and 23 CPC. The learned Single
Judge, after examining the record, directed the respondent
rt
Judgment Debtor to satisfy the award/decree. The order for
attachment of the property was made and it was also directed to
conduct the sale by auction. The respondentJudgment Debtor
deposited an amount of ` 4,68,25,228/. He has also admitted in
OMP No. 457 of 2014 that the said amount is due to the
appellantsDecree Holders. Further stated that in OMP No. 196
of 2014, the respondentJudgment Debtor in para 4 of the said
application has admitted that the appellantsDecree Holders are
entitled to the amount as claimed by them. The respondent
Judgment Debtor has also stated before the learned Single Judge
that he was ready to make the said payment and his property be
not put to sale, as recorded in the orders, dated 02.01.2015
and 24.02.2015. He has also admitted that an amount of
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` 4,68,25,228/ is due to the AppellantsDecree Holders while
making application before the Collector, Kangra at Dharamshala.
.
6. While going through the applications and the grounds
of attack in the memo of appeal, it appears that the appellants
Decree Holders have resisted OMP No. 44 of 2015 on the following
of
grounds:
(i) That the amount was determined by the
rtExecuting Court while passing orders from
time to time, is a decree, cannot be
reviewed or altered subsequently or in
different proceedings;
(ii) That the respondentJudgment Debtor
has admitted, while making applications,
that the amount to the tune of
` 4,68,25,228/ is due to the appellants
Decree Holders and even deposited the
same before the Collector, Kangra at
Dharamshala, thus, cannot be said to be
mistake, but is a determination by the
Executing Court and accepted by the
respondentJudgment Debtor; and
(iii) That the respondentJudgment Debtor
is caught by principle of constructive
resjudicata.
7. We have heard the learned counsel for the parties and
examined the entire record.
8. Mr. R.L. Sood, learned Senior Counsel appearing on
behalf of the appellantsDecree Holders, argued that the learned
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Single Judge has fallen in an error in making the impugned order.
9. Mr. Ajay Mohan Goel, learned counsel appearing on
.
behalf of the respondentJudgment Debtor, argued that the
impugned order is just and legal one, needs no interference.
10. It pains us to record herein that the parties are
of
litigating from a pretty long time, have been dragged from pillar
to post and post to pillar. Ultimately, the respondentJudgment
rt
Debtor deposited the amount and after depositing the amount,
realized that some mistake has creptin while making calculations
and made an application, being OMP No. 44 of 2015, that the
excess amount deposited by him be refunded.
11. The provisions contained in PartII of the CPC and
Order XXI Rules 1 to 106 CPC contain the procedure how to
execute a decree/award. The word "decree" has been used in all
the provisions right from Section 36 CPC to Section 74 CPC and
also in Order XXI, Rules 1 to 106 CPC.
12. It is necessary to reproduce the relevant /operative
portion of the award herein:
"....................Thus, the total payable amount
(as of today) by the Respondent to the
Claimants come to
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a) Amount due as on 26.5.2008 Rs. 1,84,58,030/
b) Interests from 26.5.2008 to Rs. 99,67,342/
26.11.2012 @ 12% p.a. _______________
.
Total= Rs. 2,84,25,372/
________________
In case the amount found due is not paid
within one month from the date of receipt of
the copy of the duly signed award, the
of
Respondent shall be further bound to pay
interest in accordance with Section 17(7) (b)
of the Act 26 of 1996 i.e. @ Rs. 18% per
annum on the amount of Rs. 1,84,58,030/
till the date of its payment.
rt
................................
lump sum costs in the sum of Rs. 15 lacs
(Rupees fifteen lacs) are also ordered to be
awarded to both the Claimants to be paid by
the Respondent in addition to the claim
amount so awarded through this Award."
13. While going through the award, it can be safely said
that the Arbitrator has specifically held as to what amount was
payable by the respondentJudgment Debtor to the appellants
Decree Holders.
14. In terms of the award/decree, it is to be calculated as
to what is the amount due. While going through the impugned
order, it appears that the learned Single Judge has made
discussions as to how the appellantsDecree Holders are
entitled to an amount of ` 3,70,49,770.80/ and not to the sum of
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` 4,68,25,228/.
15. It was for the parties to question the award in case
.
any of the parties was aggrieved by the same. None has
questioned the award and it has attained finality. Thus, the
learned Single Judge has rightly recorded para 22 of the
of
impugned order and held that the appellantsDecree Holders are
entitled to the amount to the tune of ` 3,70,49,770.80/.
16.
rt
The issues raised by the appellantsDecree Holders
before the learned Single Judge and this Court are devoid of any
force for the following reasons:
17. It is beaten law of land that the Executing Court
cannot travel beyond the decree.
18. As discussed hereinabove, the Executing Court cannot
add or subtract the decree/award and has to implement the
decree/award as it is. The learned Single has rightly computed
the awarded amount in terms of the impugned order, but the
Executing Court, while passing orders from time to time, had
recorded the awarded amount to be ` 4,68,25,228/. It is not a
determination, but is a mere calculation. The determination has
already been made by the Arbitrator while making the award.
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19. By no stretch of imagination, it can be said and held
that the respondentJudgment Debtor is precluded from bringing
.
to the notice of the Executing Court that the amount calculated
and deposited is in excess to the amount awarded and be
refunded.
of
20. The attachment order was issued, the sale was yet to
be conducted and the sale proceedings were put on hold on
rt
deposition of the amount by the respondentJudgment Debtor, as
discussed hereinabove.
21. It is beaten law of land that no person should be
prejudiced by the act of the Court based on latin maxim 'actus
curiae neminem gravabit'.
22. CPC contains mechanism and provides remedy to any
person/suitor who feels that he is prejudiced by the act of the
Court.
23. We deem it proper to reproduce Sections 151 and 152
CPC herein:
"151. Saving of Inherent powers of
Court. Nothing in this Code shall be
deemed to limit or otherwise affect the
inherent power of the Court to make such
orders as may be necessary for the ends of
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justice or to prevent abuse of the process of
the Court.
152. Amendment of judgments,
.
decrees or orders. Clerical or
arithmetical mistakes in judgments,
decrees or orders or errors arising therein
from any accidental slip or omission may
at any time be corrected by the Court
either of its own motion or on the
application of any of the parties"
of
24. These provisions of law mandate that the Court has
powers to make rectifications if any mistake has creptin while
rt
passing the interim orders or in final judgment. Even, the Court
has the power to restore the position which a suitor loses because
of some mistake here and there.
25. The High Court of Jammu and Kashmir, while
dealing with the issue of the similar nature in the case titled as
Raja Sahib of Poonch versus Kirpa Ram, reported in AIR
1954 Jammu & Kashmir 23, held that the Court has inherent
power to amend the decree in terms of Sections 151 and 152 CPC.
It is apt to reproduce para 10 of the judgment herein:
"10. The appellant did not take the two
proceedings for the execution of the decree
and for its amendment simultaneously.
The application for amendment of the
decree was made after the application for
execution of the decree was finally rejected
by the High Court. It is also unfortunate
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that the District Judge in exercise of his
appellate jurisdiction after he had
interpreted the operative part of his
judgment as laying down no time limit for
.
the payment of the increased amount and
that the decree was executable, did not
exercise his inherent jurisdiction to amend
the decree so as to bring it in conformity
with the judgment. And his order
directing the execution of the decree
simpliciter without amending the decree
of
led the High Court to set aside his order
on the ground that the executing Court
could not go behind the decree. Whether
something could not be done by the
District Judge or by the High Court in the
rtexercise of their inherent jurisdiction to
prevent this unnecessary litigation, it is
now unnecessary to consider and in the
events that have happened it is not
necessary to disturb the decree of the High
Court dated Maghar 28, 2002.
(Emphasis added)"
26. The Apex Court in the case titled as L. Janakirama
Iyer and others versus P.M. Nilakanta Iyer and others,
reported in AIR 1962 Supreme Court 633, held that the High
Court was within its jurisdiction under Sections 151 and 152 CPC
to make correction even after the appeals to Supreme Court had
been admitted. It is apt to reproduce para 23 of the judgment
herein:
"23. The next question which has been
raised on behalf of defendant 14 is in
regard to the amendment made by
the High Court in its decretal order. It is
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urged that this amendment was made
after the appeals to this Court had been
admitted and so it is without jurisdiction.
It appears that the certificate was granted
.
by the High Court to the respective
defendants who have come to this Court as
appellants on November 26, 1954 and the
appeals were admitted on December 4,
1955, whereas the amendment has been
made after the appeals were admitted. The
application for the amendment in question
of
was made under Ss. 151 and 152 of the
Code; and it became necessary because the
decretal order drawn in the High Court
referred to the profits of which accounts
were directed as mesne profits. The use of
rt
the words "mesne profits" would have
inevitably brought in the period of three
years beyond which accounts could not be
claimed. By their application the plaintiffs
alleged that the use of "mesne profits" in
the decretal order was inconsistent with
the judgment which had directed accounts
of the net profits and so they claimed that
the decretal order should be corrected in
cl. III, subcl. (3). According to the prayer
thus made it was suggested that the clause
should read as follows that the defendants
12, 13 and 14 are liable for the net profits
of the properties purchased by them under
schedule V, schedule II and schedule I
respectively". The word "net profit" was
used in the place of "mesne profits"
originally introduced in the order. When
this application for amendment was
argued before the High Court the
defendants pleaded that the use of the
words "mesne profits" was proper and
should not be changed. It was urged on
their behalf that in its judgment the High
Court had introduced the words "mesne
profits" deliberately and so the
decretal order was perfectly correct. This
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contention has been negatived by the High
Court, and in our opinion rightly. It
appears that in the earlier portion of his
judgment Krishnaswami Naidu, J.
.
summarised in one paragraph the effect of the decree passed by the trial court; and in giving this summary he observed that under the decree defendants 12, 13, 14 and 16 were held entitled to be paid the respective considerations of the sales and mortgages together with interest they of being liable to account for mesne profits as per the terms of the decree. Two things are cler. This part of the judgment does not contain the decision of the High Court at all. It is really concerned with the rtnarration of the relevant fcts and it purports to summarise the effect of the decree and nothing more. Besides, the use of the words "mesne profits" in the context is obvisuly the result of inadvertence because the decree of the trial court had in the relevant clause used the words "net profits" and not "mesne profits". Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words "mesne profits"
and such an error could be corrected by the High Court under Ss. 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of correction."
(Emphasis added)"
27. In the case titled as Samarendra Nath Sinha and another versus Krishna Kumar Nag, reported in AIR 1967 Supreme Court 1440, the Apex Court held that the errors can be corrected subsequently not only in the decree drawn up by ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 13 : ministerial officer but even in judgment pronounced and signed by Court. It is apt to reproduce para 11 of the judgment herein:
.
"11. Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
of "Every court", said Bowen L. J. in Mellor v. Swire, (1885) 30 Ch. D. 239, "has inherent power over its own records so rtlong as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to carry out its intention and express the meaning of the court when the order was made."
In Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633 the decree as drawn up in the High Court had used the words "mesne profits" instead of "net profits". In fact the use of the words "mesne profits"
came to be made probably because while narrating the facts, these words were inadvertently used in the judgment. This court held that the use of the words "mesne profits" in the context was obviously the result of inadvertence in view of the fact that the decree of the Trial Court had specifically used the words "net profits"
and therefore the decretal order drawn up in the High Court through mistake could be corrected under Sections 151 and 152 of the Code even after the High Court had granted certificate and appeals were admitted in this court before the date of the correction. It is true that under O. 20, R. 3 of the Code once a judgment is signed ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 14 : by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made under Section 152. The Rule does not also affect the court's .
inherent power under Section 151. Under Section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of of the parties. It is thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced rt and signed by the court."
28. The Orissa High Court, while dealing with such a legal issue in the case titled as Bishnu Charan Das versus Dhani Biswal and another, reported in AIR 1977 Orissa 68, invoked the powers under Section 152 CPC and held that the Court is within its powers. It is apt to reproduce para 4 of the judgment herein:
"4. Section 152, Civil P. C. is based on two important principles. The first of them is the maxim that an act of the" Court shall prejudice no party and the other that the Courts have a duty to see that their records are true and that they represent the correct state of affairs. In proceedings for amendment of a decree, the inquiry is confined only to seeing whether the decree correctly expresses what wag really decided and intended by the Court. Order 20, Rule 6 clearly provides that the decree ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 15 : shall agree with the judgment. If the decree is not in harmony with the judgment the Court has no alternative but to rectify the mistake which has been .
committed. As the power to amend is exercised for the promotion of justice, it should be exercised liberally so as to make the decree conform to the judgment on which it is founded. I am fortified in this view by an earlier decision of this Court reported in AIR 1966 Ori 225, (Sagua of Barik v. Bichinta Barik) wherein it was held on a review of the authorities that if the decree is not in conformity with the judgment it must be allowed to be amended under Sections 152 and 151 to rt bring it in line with the judgment and that in exercising the power under Sections 151 and 152 the Court merely corrects the mistake of its ministerial officer by whom the decree was drawn up."
29. The Madras High Court in the case titled as Abdul Kader versus Chinnaswamy Padayachi, reported in AIR 1980 Madras 116, has discussed the scope of Sections 151 and 152 CPC. It is apt to reproduce para 8 of the judgment herein:
"8. Order 6, P. 17 relates only to the amendment of pleadings. Such an amendment can be made even before the appellate court when it is not of such a character as to be objectionable either as changing the subject matter of the suit or as being otherwise unfair. In this matter, there was no pleading to be amended, for the proceedings are under the Land Acquisition Act. Section 151 CPC however, in my view, is wide enough to provide for such amendment, as have been prayed for.::: Downloaded on - 15/04/2017 18:51:55 :::HCHP
: 16 : In fact, it has been held that even the inherent powers of the court are not limited to Secs. 151 and 152. Dealing with the powers of the court under Section 546 .
of the Code of 1882, Woodroffe J. observed as follows "Court has an inherent power ex debito justitiae to consolidate, postpone. pending the decision of a selected action and to advance the hearing of suits; to stay on the of ground of convenience cross suits ; to ascertain whether proper parties are before it; to enquire whether the plaintiff is entitled to sue as an adult to entertain application of a third person to be made a rt party, to add a party, to allow defence in forma pauperis etc."
Of course, the inherent 'powers are Intended for exceptional cases and are non intended to enable courts to ignore the provisions of law which govern procedure nor could all the inherent powers of a court be used in order to relieve a party from the consequences of his own mistake or to enable him to evade the law of limitation. The Code has reserved to every court 'under Section 151 the inherent power to make such orders as should be made ex debito Justitiae, and every court should have In view. The shortening of litigation preventing duplication of proceedings, and saving the parties from harassment and expenses. Where a purely clerical error is brought to the notice of a High Court when it is seized of the matter as court of appeal, it can, correct the error, and extensive powers of amendment may be exercised under Sections 151 and 153. The provisions of Section 152 give power to the court not only to correct clerical or arithmetical mistakes in judgment, ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 17 : decrees or orders but also errors arising therein from any accidental slip or omission and such correction may be done at any time by the court, even without an .
application by any of the parties (vide(1941) 2 Mad LJ 452). The court's powers of amendment are not restricted to errors that have crept in the judgment or decree but extend to errors that have crept in plaint, decree, sale certificate etc. Where a property was wrongly described in a of plaint in mortgage suit and the mistake is repeated in the and final decree without being noticed either by the parties or by the court, the court has ample powers to amend the plaint, decrees and the rt judgment and correct the mistakes. Under Section 153, the court has extensive powers to correct mistakes in applications or plaints and it was held that where in a suit on a mortgage the name of the village in which the mortgaged property was situated was miss described and the mistake is discovered an appeal it is the duty of the appellate court to allow an amendment of the plaint and thus rectify a clerical mistake.
Lord Buckmaster observed in (1921) ILR 48 Cal 832, as follows: "All rules of court are nothing but provisions intended to secure the proper, administrations of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose so that full Powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment the subject matter of the suit".
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30. In another case titled as Jayalakshmi Coelho versus Oswald Joseph Coelho, reported in AIR 2001 .
Supreme Court 1084, the Apex Court held that in terms of Section 152 CPC, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by of the Court.
31. The Apex Court in the case titled as State of Punjab rt versus Darshan Singh, reported in AIR 2003 Supreme Court 4179, held that the basis of the provision under Section 152 CPC is founded on the maxim 'actus curiae neminem gravabit', i.e. an act of Court shall prejudice none. It is apt to reproduce paras 11 and 12 of the judgment herein:
"11. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the Tribunal cannot, on mere change of view, is not entitled to vary the terms of ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 19 : the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or .
limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety of or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while rt passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the provisions of Sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya Pradesh and another (1999 (3) SCC 500) and Jayalakshmi Coelho v. Oswald Joseph Coelho (2001 (4) SCC 181).::: Downloaded on - 15/04/2017 18:51:55 :::HCHP
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12. The basis of the provision under S. 152 of the Code is founded on the maxim "actus curiae neminem gravabit" i.e. an act of Court shall prejudice no man. The .
maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law," said Cresswell, J. in Freeman v. Tranah (12 CB 406). An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be of rectified. In Master Construction Co. (P) Ltd. v. State of Orissa (AIR 1966 SC 1047) it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or rt typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case."
32. The Apex Court in the recent judgment rendered in the case titled as Srihari (Dead) through LR Smt. Ch.
Niveditha Reddy versus Syed Maqdoom Shah and others, ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 21 : reported in 2014 AIR SCW 6068, has discussed the scope of Section 152 CPC. It is apt to reproduce para 22 of the judgment .
herein:
"22. This Court has earlier also reiterated in U.P.SRTC vs. Imtiaz Hussain,( 2006) 1 SCC 380 : (AIR 2006 SC 649) has reiterated that the basis of provision of of Section 152 of the Code is found on the maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no man. As such an unintentional mistake of the Court which may prejudice the cause of rt any party must be rectified. However, this does not mean that the Court is allowed to go into the merits of the case to alter or add to the terms of the original decree or to give a finding which does not exist in the body of the judgment sought to be corrected."
33. Applying the test to the instant case, it is a fit case where the Court has to invoke the powers in terms of Sections 151 and 152 CPC to rectify the mistake and refund the excess amount deposited by the respondentJudgment Debtor to him in order to do complete justice between the parties.
34. The mistake, which was projected before the learned Single Judge and before this Court, is not a mistake which goes to the root of the case. It is not the basic foundation of any of the order(s) passed by the Executing Court, but, it is only a ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 22 : calculation, which was made by it while examining the operative portion of the award made by the Arbitrator and recorded as to .
what amount was due to the appellantsDecree Holders. Thus, how it can be said to be a determination. By no stretch of imagination, it can be said that the respondentJudgment Debtor of is caught by law of waiver, estoppel, constructive res judicata or by his admission. Thus, it cannot lie in the mouth of the rt appellantsDecree Holders that the respondentJudgment Debtor is not entitled to restitution.
35. It is apt to reproduce Section 144 CPC herein:
"144. Application for restitution. (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled in 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 order or such part thereof as has been varied, reversed, set aside or modified; 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, reversal, ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 23 : setting aside or modification of the decree or order.
Explanation. For the purposes of sub .
section (1), the expression "Court which passed the decree or order" shall be deemed to include,
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, of the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such rt decree or order;
(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.
(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)."
36. The mandate of the above reproduced provision is to come to the rescue of a suitor who has made payment or parted with the property in terms of the decree of Court, which has no legal foundation.
37. The Allahabad High Court in the case titled as ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 24 : Jagendra Nath Singh versus Hira Sahu and others, reported in AIR 1948 Allahabad 252, while discussing the mandate of .
Section 144 CPC, held that the provisions of Section 144 CPC lay down a procedure where effect can be given to the general provision of the law whereunder every Court has a paramount of duty to ensure that the order passed by the Court is not adversely working against any litigant and should not be allowed to work rt injury on the suitors. It is apt to reproduce paras 45 and 46 of the judgment herein:
"45. Every Court has a paramount duty to ensure that it does no injury to any litigant, and the provisions of Section 144, as was pointed out by Mukerji, J. in Sohan Bibi v. Baihnath Das lay down a procedure whereunder effect can be given to that general provision of the law. In my opinion the Court should be slow so to construe this section as to impose a restriction upon its obligation to act "rightly and fairly according to the circumstances towards all parties involved."
46. In Jai Berham v. Kedar Nath, 9 A.I.R. 1922 P.C. 269, a sale in execution of a decree was set aside against a purchaser who was a stranger to the decree. The purchaser was held to be entitled, before restoring the property, to be paid the excess of the purchase price over the mesne profits, the Privy Council holding that the Court's duty to order restitution arose ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 25 : under Section 144, as well as under its general jurisdiction. This decision is, in my opinion, authority for the view that the provisions of Section 144, have not to be .
narrowly construed. As I have said, the decree of the Subordinate Judge in the present case has been varied by a subsequent decree of this Court : and I do not think there is any good ground, either on principle or authority for not holding that the application of the appellant for of restitution comes within the ambit of Section 144. I agree with the judgment of Malik J. and the order proposed by him."
38. The Apex Court in the case titled as Mahijibhai rt Mohanbhai Barot versus Patel Manibhai Gokalbhai and others, reported in AIR 1965 Supreme Court 1477, has laid down the same principle. It is apt to reproduce para 23 of the judgment herein:
"23. With this background the Legislature in passing the Code of Civil Procedure 1908 introduced sec. 144 therein. The said section is more comprehensive than sec. 583 of the Code of 1882. Sec. 144 of the present Code does not create any right of restitution. As stated by the Judicial Committee in Jai Berham v. Kedar Nath Marwari, 49 Ind App 351 at p. 355 : (AIR 1922 PC 269 at p. 271), "It is the duty of the Court under sec. 144 of the Civil Procedure Code to place the parties in the position which they would have occupied but for such decree or part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 26 : merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties .
involved."
The section to avoid the earlier conflict prescribes the procedure defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under this section. The of section does not either expressly or by necessary implication change the nature of the proceedings. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and rt unambiguous. It does not say that an application for restitution which till the new Procedure Code was enacted was an application for execution should be treated as an original petition. Whether an application is one for execution of a decree or is an original application depends upon the nature of the application and the relief asked for. When a party who lost his property in execution of a decree seeks to recover the same by reason of the appellate decree in his favour he is not initiating any original proceeding but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution because the appellate decree enables him to obtain that relief either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie therefore having regard to the history of the section there is no reason why such an application shall not be treated as one for the execution of the appellate decree."
::: Downloaded on - 15/04/2017 18:51:55 :::HCHP: 27 :
39. The Apex Court in the case titled as Mrs. Kavita Trehan and another versus Balsara Hygiene Produces .
Ltd., reported in AIR 1995 Supreme Court 441, held that restitutionary jurisdiction in terms of Sections 144 and 151 CPC is inherent in every Court. It is apt to reproduce para 13 of the of judgment herein:
"13. The Law of Restitution encompasses rt all claims founded upon the principle of unjust enrichment. 'Restitutionary claims are to be found in equity as well as at law'.
Restitutionary law has many branches. The law of quasicontract is "that part of restitution which stems from the common indebitatus counts for money had and received and for money paid, and from quantum meruit and quantum valebat claims." (See 'The Law of Restitution' Goff & Jones, 4th Edn. Page 3).
Halsbury's Law of England, 4th Edn.Page 434 states :
"Common Law. Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi contract or restitution.::: Downloaded on - 15/04/2017 18:51:55 :::HCHP
: 28 : For historical reasons, quasi contract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity .
has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two strands are in the process of being woven into a single topic in the law, which may be termed "restitution"."
of Recently the House of Lords had occasion to examine some of these principles in Woolwich Equitable Building Society v. Inland Revenue Commissioners, 1993 AC rt70."
40. It would be profitable to reproduce paras 26 to 28 of the judgment rendered by the Apex Court in the case titled as South Eastern Coalfields Ltd. versus State of M.P. and others, reported in (2003) 8 Supreme Court Cases 648, herein:
"26. In our opinion, the principle of restitution takes care of this submission. The word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the Court or in direct consequence of a decree or order (See Zafar Khan v. Board of Revenue, U. P., 1984 Supp SCC 505 : AIR 1985 SC 39). In law, the term 'restitution' is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; (iii) compensation or reparation ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 29 : for the loss caused to another. (See Black's Law Dictionary, Seventh Edition, P. 1315). The Law of Contracts by John D. Calamari and Joseph M. Perillo has been .
quoted by Black to say that 'restitution' is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done.
"Often, the result in either meaning of of the term would be the same. ........ Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of a nontortious misrepresentation, rt the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed."
The principle of restitution has been statutorily recognized in S. 144 of the Code of Civil Procedure, 1908. Section 144 of the CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with all ::: Downloaded on - 15/04/2017 18:51:55 :::HCHP : 30 : expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against .
it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution of would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim rt order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the Court at the stage of final decision, the Court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.
27. Section 144 of the CPC is not the fountain source of restitution; it is rather a statutory recognition of a preexisting rule of justice, equity and fair play. That is why it is often held that even away from S. 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari, (1922) 49 IA 351 :
AIR 1922 PC 269, their Lordships of the Privy Council said: (AIR p. 271) "It is the duty of the Court under S. 144 of the Civil Procedure Code to place the parties in the position which they would have occupied but ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 31 : for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section.
.
It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved."
Cairns, L. C. said in Rodger v. Comptoir of D'Escompte de Paris, (1871) L.R. 3 PC 465 : 7 Moo PCC NS 314 : 17 ER 120: (ER p.
125) "[O]ne of the first and highest duties rt of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression, the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the Case."
This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it (A. Arunagiri. Nadar v. S. P. Rathinasami, (1971)1 MLJ
220. In the exercise of such inherent power the Courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the Court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 32 : opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of .
restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not of have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. The quantum of restitution, depending on the rt facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the Court not intervened by its interim order when at the end of the proceedings the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the Court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 33 : in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by .
making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the of battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is rtentitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the Court withholding the release of money had remained in operation."
41. The ratio of the Apex Court in the said judgment is that if a case does not squarely fall within the ambit of Sections 144 and 152 CPC, the Court has inherent powers under Section 151 CPC to pass order(s) in order to do complete justice between the parties and to restore the position.
42. In the case titled as State of Gujarat & Ors. versus Essar Oil Limited and Anr., reported in 2012 AIR SCW 1008, the Apex Court explained the concept of restitution. It is apt to reproduce paras 60, 62, 70, 71 and 73 of the judgment herein:
::: Downloaded on - 15/04/2017 18:51:56 :::HCHP: 34 : "60. Examining the aforesaid two contentions, this Court finds that there is an overlapping area between the two. The concept of restitution is basically founded .
on the idea that when a decree is reversed, law imposes an obligation on the party who received an unjust benefit of the erroneous decree to restitute the other party for what the other party has lost during the period the erroneous decree was in operation. Therefore, the Court while of granting restitution is required to restore the parties as far as possible to their same position as they were in at the time when the Court by its erroneous action displaced them. In the case of Lal Bhagwant Singh rt v. Sri Kishen Das, 1953 AIR(SC) 136, Justice Mahajan speaking for a unanimous threeJudge Bench of this Court explained the doctrine of restitution in the following words: "the principles of the doctrine of restitution which is that on the reversal of a 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 and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case "
61. ...............
62. The concept of restitution is virtually a common law principle and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the Court which prevents a party from retaining money or some ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 35 : benefit derived from another which he has received by way of an erroneous decree of Court. Such remedy in English Law is generally different from a remedy in .
contract or in tort and falls within a third category of common law remedy which is called quasi contract or restitution.
63 to 69. ..............
70. The second principle that an act of of court cannot prejudice anyone, based on latin maxim "actus curiae neminem gravabit" is also encompassed partly within the doctrine of restitution. This actus curiae principle is founded upon rt justice and good sense and is a guide for the administration of law.
71. The aforesaid principle of "actus curiae" was applied in the case of A.R. Antulay v. R.S. Nayak & another, 1988 2 SCC 602, wherein Sabyasachi Mukharji, J (as his lordship then was) giving the majority judgment for the Constitution Bench of this Court, explained its concept and application in para 83, page 672 of the report. His lordship quoted the observation of Lord Cairns in Rodger v. Comptoir D escompte De Paris,1871 3 LR 465 which is set out below:
"Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 36 : entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those .
Tribunals, if I may use the expression, 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."
72. ..................
of
73. It was made clear in the Antulay Case that when Court passes an order, which is rendered per incuriam, and the party suffered because of the mistake of the rtCourt, it is the Court's duty to rectify the said mistake. It is in that context that the concept of actus curiae can be invoked. In the instant case the order passed by the High Court in the second PILs was overturned by this Court by its orderdated 19.01.2004 on a different interpretation of section 29 of the WPA."
43. Section 144 CPC, as reproduced hereinabove, is a part of procedure which provides remedy to a suitor who has lost his/her position in the execution proceedings of the decree or order. It can be pressed into service on the following grounds:
(i) The restitution sought must be in respect of the decree or order which had been varied or reversed;
(ii) The party applying for restitution must be entitled to a benefit under a ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 37 : reversing decree or order; and
(iii) The relief claimed must be properly .
consequential on the reversal or variation of the decree or order.
44. The remedy can be invoked even otherwise also. The of word 'otherwise' used provides that restitution can be prayed whether or not a decree or order was altered, varied or reversed.
45. rt The suitor/aggrieved party is not supposed to file a suit but has to lay a motion in view of the mandate of subsection (2) of Section 144 CPC.
46. Applying the test, it is a fit case where the Court has to interfere in terms of the mandate of Section 144 CPC.
47. Section 72 of The Indian Contract Act, 1872 (for short "Contract Act") provides that if a mistake is committed and money or thing is handed over to any person, he has to repay. It is apt to reproduce Section 72 of the Contract Act herein:
"72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion. A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."::: Downloaded on - 15/04/2017 18:51:56 :::HCHP
: 38 :
48. The Apex Court in the case titled as The Sales Tax Officer, Banaras and others versus Kanhaiya Lal Makund .
Lal Saraf, reported in AIR 1959 Supreme Court 135, has dealt with the issue and held that the word 'mistake' in Section 72 of the Contract Act comprises both mistake of law and fact and that of the mistake, if established, entitles the party paying the money to recover it back from the party receiving the same. The learned rt Single Judge has discussed the judgment in the impugned order.
We deem it proper to reproduce paras 23 and 24 of the judgment herein:
"23. The Privy Council resolved this conflict in Shiba Prasad Singh v. Srish Chandra Nandi. 76 Ind App 244 : (AIR 1938 PC 297). Their Lordships of the Privy Council observed that the authorities which dealt with the meaning of "mistake" in the section were surprisingly few and it could not be said that there was any settled trend of authority. Their Lordships were therefore bound to consider this matter as an open question, and,.stated at p. 253 (of Ind App) : (at p 301 of AIR) : "Those learned judges who have held that mistake in this context must be given a limited meaning appear to have been largely influenced by the view expressed in Pollock and Mulla's commentary on S. 72 of the Indian Contract Act, where it is ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 39 : stated (Indian Contract and Specific Relief Acts, 6th Ed. p. 402): "Mistake of law is not expressly excluded by the words of this section; but S. 21 .
shows that it is not included". For example, ILR 44 Bom 631: (AIR 1920 Bom 192) Macleod J. said referring to S. 72 "on the face of it mistake includes mistake of law. But it is said that under S. 21 a contract is not voidable on the ground that the of parties contracted under a mistaken belief of the law existing in British India, and the effect of that section would be neutralized if a party to such a contract could recover what he rt had paid by means of S. 72 though under S. 21 the contract remained legally enforceable. This seems to be the argument of Messrs. Pollock and Mulla and as far as I can see it is sound." In AIR 1929 Mad 177 Ramesam and Jackson JJ. say :
"Though the word 'mistake' in S. 72 is not limited it must refer to the kind of mistake that can afford a ground for relief as laid down in Ss. 20 and 21 of the Act .. . . .. Indian law seems to be clear, namely, that a mistake, in the sense that it is a pure mistake as to the law in India resulting in the payment by on person to another and making it equitable that the payee should return the money is no ground for relief." Their Lordships have found no case in which an opinion that "mistake" in S. 72 must be given a limited meaning has been based on any other ground. In their Lordships' opinion this reasoning is fallacious. If a mistake of law has led to the formation of a contract, S. 21 enacts that that contract is not for that ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 40 : reason voidable. If money is paid under that contract, it cannot be said that that money was paid under mistake of law; it was paid because it .
was due under a valid contract, and if it had not been paid payment could have been enforced. Payment "by mistake" in S. 72 must refer to a payment which was not legally due and which could not have been enforced; the "mistake" is thinking of that the money paid was due when, in fact, it was not due. There is nothing inconsistent in enacting on the one hand that if parties enter into a contract under mistake in law that rt contract must stand and is enforceable, but, on the other hand, that if one party acting under mistake of law pays to another party money which is not due by contract or otherwise, that money must be repaid. Moreover, if the argument based on inconsistency with S. 21 were valid, a similar argument based on inconsistency with S. 22 would be valid and would lead to the conclusion that S. 72 does not even apply to mistake of fact. The argument submitted to their Lordshijs was that S. 72 only applies if there is no subsisting contract between the person making the payment and the payee, and that the Indian Contract Act does not deal with the case where there is a subsisting contract but the payment was not due under it. But there appears to their Lordships to be no good reason for so limiting the scope of the Act. Once it is established that the payment in question was not due, it appears to their Lordships to be ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 41 : irrelevant to consider whether or not there was a contract between the parties under which some other sum was due. Their Lordships do not find .
it necessary to examine in detail the Indian authorities for the wider interpretation of "mistake" in S. 72. They would only refer to the latest of these authorities, AIR 1946 Cal 245 in which a carefully reasoned judgment was given by Sen, J. Their of Lordships agree with this judgment. It may be well to add that their Lordships' judgment does not imply that every sum paid under mistake is recoverable, no matter what the rt circumstances may be. There may in a particular case be circumstances which disentitle a plaintiff by estoppel or otherwise".
24. We are of opinion that this interpretation put by their Lordships of the Privy Council on S. 72 is correct. There is no war rant for ascribing any limited meaning to the word 'mistake' as has been used therein and it is wide enough to cover not only a mistake of fact but also a mistake of law. There is no conflict between the provisions of S.72 on the one hand and Ss. 21 and 22 of the Indian Contract Act on the other and the true principle enunciated is that if one party under a mistake, whether of fact or law, pays to another party money which is not due by contract or otherwise that money must be repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same."
::: Downloaded on - 15/04/2017 18:51:56 :::HCHP: 42 :
49. The Apex Court in the case titled as Indian Council for Envirolegal Action versus Union of India and others, .
reported in (2011) 8 Supreme Court Cases 161, has laid down the same principle. It is apt to reproduce paras 151 to 156 of the judgment herein:
of "151. Unjust enrichment has been defined as:
rt "Unjust enrichment. A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense."
See Black's Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573.
A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience."
152. 'Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust.
Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
::: Downloaded on - 15/04/2017 18:51:56 :::HCHP: 43 :
153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental .
principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 23233 (Delaware. 1999). USA) of
154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading rt case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd.
1943 AC 32 : (1942) 2 All ER 122 (HL), Lord Wright stated the principle thus :
(AC p. 61) ".......(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasicontract or restitution."
155. Lord Denning also stated in Nelson v. Larholt, (1948) 1 KB 339 : (1947) 2 All ER 751 as under: (KB p. 343):
::: Downloaded on - 15/04/2017 18:51:56 :::HCHP: 44 : "..........It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined .
effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally of within the important category of cases where the court orders restitution if the justice of the case so requires."
156. The above principle has been accepted rtin India. This Court in several cases has applied the doctrine of unjust enrichment."
50. Applying the principle to the instant case, it is a fit case where the Court has to intervene in order to ensure that the Judgment Debtor may not suffer in terms of the mandate of Section 72 of the Contract Act.
51. The execution is the enforcement of the decree/order by the process of the Court. The rules of procedure are enacted in PartII of the CPC and minor rules are relegated to Order XXI CPC. The mandate of the said provisions govern the procedure, mode and manner of the execution of the decree or order as it is.
Order(s) passed in execution petition relating to enforcement of the decree/order can operate as constructive res judicata in the ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 45 : same proceedings at the subsequent stages or in different proceedings. But, any order made by the Executing Court, which .
has the effect of modification, alteration or variation and addition of the decree or order, is without any competence, power and jurisdiction, cannot operate as res judicata.
of
52. It is profitable to reproduce Order XXI Rules 22 and 23 CPC herein:
rt "ORDER XXI EXECUTION OF DECREES AND ORDERS
22. Notice to show cause against execution in certain cases. (1) Where an application for execution is made,
(a) more than two years after the date of the decree, or
(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A, or
(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:
::: Downloaded on - 15/04/2017 18:51:56 :::HCHP: 46 : Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for .
execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the of judgmentdebtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him.
rt(2) Nothing in the foregoing subrule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
xxx xxx xxx
23. Procedure after issue of notice. (1) Where the person to whom notice is issued under rule 22 does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.
(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit. "
53. These provisions deal with the procedure for issuance of notice and after the notice is issued.::: Downloaded on - 15/04/2017 18:51:56 :::HCHP
: 47 :
54. The Rajasthan High Court, while dealing with Order XXI Rule 23 CPC, in the case titled as Amar Singh versus .
Gulab Chand, reported in AIR 1960 Rajasthan 280, has laid down the tests. It is apt to reproduce para 11 of the judgment herein:
of "11. As for choosing between the Allahabad and the Madras decisions, after a careful consideration of the reasoning of both the cases, I have no hesitation in rt preferring and accepting the Madras view.
I cannot appreciate, on a consideration of general principles of constructive res judicata, why a judgmentdebtor who ignores the notice of a court requiring him to show cause why execution should not issue against him and omits to raise any objection should be permitted to ignore an adjudication directing execution at a later stage. The effect of the order is that all pleas in bar, if any, go by the board.
There is absolutely no justice or equity in his favour and it will be wholly undesirable to set a premium on default and contumacy. The consideration that a notice under Order 21 Rule 22 is not accompanied by a copy of the application for execution as also those relevant in connection with suits should not have much weight in execution cases which are concerned merely with the enforcement of decisions binding on parties. There is no reason why default on the part of the judgmentdebtor in this connection should be seriously viewed."
::: Downloaded on - 15/04/2017 18:51:56 :::HCHP: 48 :
55. It would also be profitable to reproduce para 18 of the judgment rendered by the Orissa High Court in the case titled as .
Rajkishore Mohanty and another versus Kangali Moharana and others, reported in AIR 1972 Orissa 119, herein:
of "18. As the decision of this Court in 34 Cut LT 758 = (AIR 1968 Orissa 183) is in accord with the view we have taken of the rtapplication of the princi ple of constructive res judicata to ex ecution proceedings, the observation in (1970) 1 Cut WR 255, (Sama Kishore Das v. Raj Kishore Das) (on which re liance is placed by the respondents) that the decision in 34 Cut LT 758 = (AIR 1968 Orissa 183) does not state the law properly and must be taken to have been impliedly overruled by the deci sion of the Supreme Court in AIR 1969 SC 971, does not appear to us to be correct."
56. The Apex Court in the case titled as Barkat Ali and another versus Badrinarain (dead) by LRs, reported in (2008) 4 Supreme Court Cases 615, upheld the judgment of the Rajasthan High Court in the case (supra), reported in AIR 2001 Rajasthan 51 and has laid down the same principle. It is apt to reproduce para 13 of the judgment herein:
"13. The principles of res judicata not only apply in respect of separate proceedings ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 49 : but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again .
which has been decided or deemed to have been decided by it at an early stage."
57. Learned Senior Counsel appearing on behalf of the Decree Holders also argued that the Judgment Debtor is caught of by principle of constructive res judicata. The argument is not legally correct for the reason that the Executing Court has not rt made any determination, it has made only the calculations and if calculations are wrongly made, the same can be corrected at any stage.
58. The Patna High Court in the case titled as Sheoratan Kurmi and after his death Akhji Devi and others versus Kalicharan Ram and others, reported in AIR 1968 Patna 270, held that the principle of constructive res judicata applies to an execution proceeding under Section 144 CPC in respect of a matter which was decided expressly or by implication in a proceeding. It is apt to reproduce the relevant portion of para 5 of the judgment herein:
"5. In this Court counsel for the appellants submitted that a second application for restitution, which was numbered as ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 50 : Miscellaneous Case No. 2 of 1963, was not maintainable so long the order dated the 13th March, 1963, dismissing the first application for default stood, because of .
the principle of constructive res judicata.
It is well settled that the principle of constructive res judicata applies to an execution proceeding under Section 144 in respect of a matter which was decided expressly or by implication in a proceeding. But in the instant case of nothing was decided expressly and nothing could have been decided by implication, because the application under Section 144 was dismissed for default and by that date the appellantsopposite party rthad not filed any objection to the restitution proceeding. The mere fact that the application was dismissed for default in presence of the opposite party appellants does not justify the inference that any matter was decided................."
59. It is apt to reproduce para 25 of the judgment rendered by the Apex Court in the case titled as Radhey Shyam Gupta versus Punjab National Bank & Anr., reported in 2008 AIR SCW 8284, herein:
"25. We also agree with Ms. Shobha that the High Court could not have gone behind the decree in the execution proceedings and the alteration in the manner of recovery of the decretal amount was erroneous and cannot be sustained. We also agree with Ms. Shobha that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 51 : to Section 60(1) of the Code. Except for the decision in the Jyoti Chit Fund and Finance case (supra), where a contrary view was taken, the consistent view taken .
thereafter support the contention that merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retiral benefits paid to the appellant."
of
60. The Apex Court in the case titled as Shivshankar Gurgar versus Dilip, reported in 2014 AIR SCW 1099, held rt that Executing Court cannot go beyond the decree and it must execute the decree as it is. It is apt to reproduce para 15 of the judgment herein:
"15. Coming to the second reason i.e., the failure of the appellant to challenge the order of the executing court dated 23.11.2005 (by which the executing court granted 15 days time to the respondent to deposit the balance of the arrears of rent) debar the appellant to recover possession of the property in dispute is equally untenable, because:
(i) in our opinion, the order of the executing court dated 23.11.2005 is beyond his jurisdiction and a nullity. The only source which confers powers on the civil court to enlarge time is found under Section 148 of the Code of Civil Procedure which reads as follows:
148. Enlargement of time Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 52 : by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or .
granted may have expired.
It is obvious from the language of the Section, such a power can be exercised only in a case where a period is fixed or granted by the court for doing of any act prescribed by this Court. In a compromise of decree such as the one on hand, the stipulation that the judgment debtor is required to make the payment of the money within a specified period is a stipulation by agreement between the rt parties and it is not a period fixed by the court. Therefore, Section 148 CPC has no application to such a situation. We are fortified by the decision of this court in Hukumchand v. Bansilal and others, AIR 1968 SC 86.
(ii) In our opinion, the order dated 23.11.2005 virtually amounts to the modification of the decree and is without jurisdiction on the part of the executing court, therefore, a nullity.
It is a settled principle of law that the executing court cannot go beyond the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. This Court in Deepa Bhargava and Another v. Mahesh Bhargava and Others, [(2009) 2 SCC 294] : (AIR 2008 SC (Supp)
788) held thus: "9. There is no doubt or dispute as regards interpretation or application of the said consent terms. It is also not in dispute that the respondent judgmentdebtors did not act in ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 53 : terms thereof. An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the .
decree as it is ."
61. Learned Single Judge, while making the calculations, has not made any determination and cannot be said to be any decision. Thus, the principles of constructive res judicata are not of applicable.
62. Having glance of the above discussions, we are rt of the considered view that it is just a mistake committed by the Executing Court while making calculations and in terms of that calculations, the respondentJudgment debtor, who was facing attachment and sale of his property, was constrained to deposit an amount to the tune of ` 4,68,25,228/ before the Collector, Kangra at Dharamshala. It cannot be said and held that he is caught by the principle of constructive res judicata.
63. It is also true that the respondentJudgment Debtor has stated in various applications that the amount to the tune of ` 4,68,25,228/ was due to the appellantsDecree Holders, his statement cannot be said to be binding because that amounts to alteration of the decree/award. Decree/award is a decree/award, ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP : 54 : which is to be satisfied as it is as per the mandate of the provisions of the CPC.
.
64. The mandate of the said provisions is that the Executing Court has to take steps and pass appropriate orders relating to the execution of award/decree. We have reproduced of the relevant portion of the award herein, which is not shrouded in any ambiguity, but clearly contains what was granted by the rt Arbitrator in favour of the appellantsDecree Holders and to what amount they are entitled to.
65. Viewed thus, we are of the considered view that the learned Single Judge has rightly passed the impugned order, needs no interference.
66. Having said so, the impugned order is upheld and the appeal is dismissed alongwith all pending applications.
(Mansoor Ahmad Mir) Chief Justice (Dharam Chand Chaudhary) Judge September 03, 2015 ( rajni ) ::: Downloaded on - 15/04/2017 18:51:56 :::HCHP