2019 ACJ [ APEX COURT JUDGMENT] VOL.NO.1/2019 APEX COURT DIGEST VOL.NO.1
- Section 144 of the Code of Civil Procedure, 1908 for the restoration of possession of the disputed land and for awarding mesne profits – Suit for injunction was dismissed finding that the plainitff failed to prove his possession – he filed a petition for restoration of possession – Trail court dismissed the same –
- 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 to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or 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, setting aside or modification of the decree or order. Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed.
In the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant. In these circumstances, the provisions of Section 144, CPC were not attracted there being no variation or reversal of a decree or order as contemplated by Section 144. The remedy of the first respondent, if any, did not lie in an application for restitution before the executing court under Section 144, CPC. The executing court was justified in declining to entertain the application under Section 144, CPC. The order of the first appellate court which has been affirmed by the High Court was unsustainable. Accordingly, we allow the appeal and set aside the judgment of the High Court dated 3 December 2004. The application filed by the respondent before the executing court shall stand dismissed. No costs.