The main legal point established in the judgment is that an application for restitution under Section 144, Civil P.C. is governed by Article 181 and not by Article 182, Limitation Act.

1. The question referred to the Bench by Pollock J. is as under:

Is an application for restitution under Section 144 Civil P.C. or the principles contained therein governed by Article 181 or Article 182, Limitation Act.

2. It is clear that the reference was necessitated on account of conflict of opinion on the subject. Broadly speaking, the High Courts of Calcutta, Allahabad and Lahore are of the view that an application for restitution under Section 144 Civil P.C. is not an application in execution and is governed for the purposes of limitation by Article 181 while the High Courts of Bombay, Madras, Patna and Rangoon and the Chief Court of Oudh are of the view that such an application is virtually an application in execution and limitation is governed by Article 182, Limitation Act. The decisions of the Nagpur Judicial Commissioner's Court and of the Nagpur High Court are also not harmonious. In spite of this voluminous case law, there are, in our view, very few decisions in which the subject has been discussed elaborately and reasoned very closely.

3. Before entering into the case law on the subject, we propose to approach the question to be answered on broad principles of law and on the historical development of the present Section 144, Civil P.C.

4. In the first place, there is an essential difference between restitution and execution. Restitution means in law restoring to the party, on the variation or reversal of a decree what has been lost to him in execution of the decree reversed or varied or in consequence of that decree. Execution, on the other hand, is the enforcement of the direction in the executable decree or order--which are usually supposed to be self-contained and to give effect to them. The right of restitution is not based on any statute or on the mandates of a Court contained in its decree or order but on the inherent jurisdiction which every Court has, to repair the injury done to a suitor as a result of its wrong action or decision a principle which is contained in the well-recognized maxim actus curide neminem gravabit. Their Lordships of the Privy Council in a case reported in Jai Berham v. Kedar Nath, 1922 AIR(PC) 269 observed thus:

It is the duty of the Court, under Section 144, Civil P.C., to 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. 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.

5. In Rodger v. The Comptoir D Escompte De Paris,1871 3 LRPC 465 which is the leading case in this matter their Lordships observed:

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 entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.

6. Section 144, Civil P.C. does not create the right of restitution. It merely confers power and prescribes procedure by which a due relief can be given to the injured party. It gives to the Court of first instance a wide power in the matter of causing restitution and determining all questions connected therewith. The Court executing the decree or order is on the other hand bound to enforce the decree or order as it stands and has no jurisdiction either to question it or to travel beyond the same. In fact execution proceeds on the basis that a valid decree exists which is to be executed while restitution is to be caused because a decree, or order which existed and which was executed becomes non-existent wholly or partially.

7. The jurisdiction to cause restitution or to determine all question