Full Judgment
Mukerji and Dalal, JJ.
1. This is an appeal by a judgment-debtor, Lala Tara Chand, from the dismissal of his application for restitution under Section 144 of the Code of Civil Procedure. He was made a party defendant to a partition suit while he was a minor. He was then over 18 years of age, but under 21; and was, therefore, not a major, being a ward of the Civil Court. On his being brought on the record, he entered into contest after appointing a pleader, and decrees (preliminary and final) were passed against him. He filed two 'appeals to this Court and his appeals were dismissed. Subsequently, the plaintiff of the suit recovered her costs of the first court and this Court. The present application was for refund of the costs. The preliminary and final decrees in the partition suit have been declared by this Court today to, be null and void.
2. The learned Judge of the first court refused to order restitution and hence Tara Chand has appealed. It is argued here that the principle of Section 144 applies, though the decrees themselves were not varied or reversed in appeal. The same words, 'varied' and 'reversed', are used in Sections 98 and 99 of the Code with reference to an appeal.-It is, therefore, difficult to believe that they are used in this section with a different meaning. At the same time, we are aware of the ruling of the Madras High Court that the provisions of this section may be extended to cases where a decree is set aside as null and void in a separate suit: Tangatur v. Gerram (1916) I.L.R. 40 Mad. 299. Whether the provisions apply or not, it is clear that this Court has jurisdiction, under the provisions of Section 151, to exercise its discretion and make such order as may be necessary for the ends of justice. Their Lordships observed in Jai Berhma v. Kedar Nath Marwari (1922) I.L.R. 2 Pat. 10; 16:
Nor indeed does this duty or jurisdiction arise merely under the said section (i.e. Section 144). It is inherent in the general jurisdiction of the court to act rightly and fairly, according to the circumstances, towards all parties involved.
3. A Full Bench of this Court acted in accordance with these principles in Bindeshri Prasad v. Badal Singh (1923) I.L.R. 45 All. 369.
4. The question, therefore, is whether in this present case it will be necessary for the ends of justice to restore the costs paid by Tara Chand. In our opinion it will not be. As regards the costs in the High Court, there can be no equity in refunding those costs. Tara Chand himself did not appeal through his next friend; he appealed himself. It was not the fault of the respondent, Musammat Champi, that he did not appeal through his next friend. As regards the costs of the first court also, we do not think it will be equitable to relieve him of the costs which he was ordered to pay. He himself must have known that he was a minor. He concealed that' ^act and entered into litigation. He was over 18 years at that time and was a minor, because the age of majority was put off by a guardian being appointed to his property and person by the District Court. There is evidence that at that time Tara Chand did all his business himself without intervention of his guardian, who was his natural mother. Tara Chand was adopted out of the family and had ceased to have anything to do with his natural mother. Only when he brought the suit for cancellation of the decrees passed in the partition suit, he sued through his guardian. These are the circumstances which do not entitle him to the refund of the costs recovered from him. We dismiss this appeal with costs.