Orissa High Court
Garuda Singh Majhi vs Dhana Bai And Ors. on 25 February, 1987
Equivalent citations: AIR1989ORI103, AIR 1989 ORISSA 103, (1987) 64 CUT LT 110
ORDER S.C. Mohapatra, J.
1. Plaintiff is the petitioner in this Civil Revision.
2. Title Suit No. 10 of 1971 was filed for declaration of title and recovery of possession of 21 acres 11 decimals of land declared to be in possession of the defendants in a proceeding under Section 145, Cr.P.C. The suit was decreed ex parte. While the application of the defendants for setting aside the ex parte decree was pending, plaintiff got the delivery of possession of the properties through the Executing Court on 2-3-1973 in execution of the ex parte decree for recovery of possession. The application under Order 9, Rule 13, C.P.C., which was rejected, by the trial Court was allowed by this Court in M.A. No. 68 of 1973 on 29-7-1975 and the ex parte decree was set aside. Thereafter, the defendants filed an application for restitution which was allowed by the Executing Court on 1-3-1977. Before delivery of possession to the defendants on the basis of the order of restitution, the suit was dismissed for default and was restored to file without notice to defendants. Thereafter, on 3-11-1977 plaintiff again obtained an ex parte decree, which has since been set aside On 19-7-1979. On the decree being set aside, the defendants filed an application on 31st October, 1980 praying the Executing-Court to give effect to the order dated 1-3-1977, for restitution of the property. The material portion of the petition reads as follows : --
"That in view of rejection of the appeal filed by the O.P.D. Hr. the order passed on 1-3-77 stands operative. Thus the follow up action putting the possession of suit property in favour of the petitioner--J. Dr. who have been dispossessed on the strength of the reversed order needs to be restituted as envisaged under Section 144, Civil Procedure Code as prayed in the abovementioned case."
Plaintiff took some adjournments and lastly the application for adjournment being refused, the impugned order was passed on the finding:
''.......Since no order has been passed reversing the order of this Court passed on 1-3-1977, the said order still holds good..,..."
Correctness of this order is in dispute in this civil revision.
3. Mr. D. P. Sahoo, the learned counsel for the decree-holder, submitted that the trial Court exercised jurisdiction with material irregularity in finding that the order dated 1-3-1977 still holds good without taking into consideration that the basis of the order dated 1-3-1977 was lost when the suit was again decreed ex parte although the same has subsequently been set aside. Mr. P. Palit, the learned counsel for the judgment-debtors, on the other hand justified the impugned order submitting that the order for restitution being a decree became final since no appeal was preferred against the same.
4. As has been held in ILR (1980) 2 Cuttack 571 (Babaji Charan Sahoo v. Laxmipriya Debi) :
"The doctrine (of) restitution as embodied in Section 144, Civil Procedure Code is based upon the cardinal principle of law that the acts of Courts should not be allowed to work injury on the suitors. The section contemplates restitution in a case where the property has been received by the decree-holder under this decree and that decree is subsequently, wholly or partially, reversed or varied in other proceedings. In such a case, the law casts an obligation on the party, who received the benefit of such erroneous judgment to deliver back the property to the person who had lost it."
It was further held that in case where Section 144, Civil Procedure Code per se in terms does not apply to the facts of the case, the inherent power of the Court under Section 151, Civil Procedure Code would be invoked to grant restitution, in view of the well settled legal position that the provision is not exhaustive and the Court has inherent jurisdiction to grant restitution. Therefore, it is to be examined whether the order dated 1-3-1977 was passed under Section 144, Civil Procedure Code or in exercise of the inherent power.
5. In order to come within the scope of a 'decree' the order for restitution is to be one under Section 144, C.P.C. An order for restitution in exercise of inherent power under Section 151, C.P.C. would not be a decree and no appeal would lie against such order. See AIR 1917 Pat 495 (Sukhdeo Dass v. Rito Singh), AIR 1930 Pat 280 (Ram Ratan Prasad v. Banarasilal) and AIR 1938 Pat 447 (Rameshwar Lal Jhunjhunwala v. Ram Charan Prasad Sahu).
6. Section 144, Civil Procedure Code has undergone change. It was amended in Section 48 of Act 104 of 1976. Therefore, in view of Section 97(3) of the Amending Act, Section 144 as amended would be applicable to the proceedings pending on the date of its coming into force on 1-2-1977. In that view of the position, although the application for restitution was filed on 25-6-1976, Section 144 as amended by Act 104 of 1976, would be applicable to this case if the conditions thereof are satisfied.
7. Prior to the amendment, the prerequisite for applicability of Section 144 is that the decree is to be varied or reversed'. After amendment, the decree is required to be varied or reversed in appeal, revision or other proceeding or set aside or modified in any suit instituted for the purpose. The legislature having used the words 'varied', 'reversed', 'set aside' and 'modified' each term has to be given its own meaning since the legislature never uses words unnecessarily. On the plain language of Section 144, C.P.C., the decree is to be varied or reversed in appeal, revision or other proceeding. In case of a decree being set aside or modified, it is to be in any suit instituted for the purpose. The term 'set aside' has been used in Order 9, Rule 13, C.P.C. Unless the context otherwise requires the term 'set aside' in Section 144, C.P.C. would carry the same meaning as in Order 9, Rule 13, C.P.C. When Section 144, C.P.C. provided that it would be applicable where a decree is set aside in a suit filed for the purpose, the legislature did not intend that the provision would be attracted in a case where a decree is set aside under Order 9, Rule 13, C.P.C. Section 144, C.P.C. in terms, therefore, does not apply to a case where the decree is set aside under Order 9, Rule 13, C.P.C. Even if the provision is not attracted, the inherent power of the Court may be exercised for restitution where a party has been injured by act of the Court by application of the maxim 'actus curiae neminem gravabit.'
8. Ex parte decree is set aside under Order 9, Rule 13, C.P.C. Where the summons was not duly served or where the defendant was prevented by sufficient cause from appearing, when the suit was called for hearing. Ex parte decree on the basis of absence of due service of summons, is act of the Court by which the defendant suffered the deprivation of the property in his possession. On the application of the principle in the maxim 'actus curiae neminem gravabit', the Executing Court is to restore back the possession by exercise of the inherent power. Where, however, the defendant could not appear when the suit was called for hearing for reasons which were found to be sufficient cause, the suffering of the defendant by deprivation of the property is not on account of act of Court. The plaintiff cannot also be blamed for getting an ex parte decree. Exercise of inherent power in such a case is not appropriate as a general rule though in exceptional cases the Court may consider the question on its own merits.
9. Be that as it may, Section 144, C.P.C. not being per se applicable to the present case, the order of restitution passed on 1-3-1977, was one under Section 151, C.P.C. in exercise of the inherent power of the Court. No sooner the decree was again passed ex parte, the order dated 1-3-1977 lost its force. Subsequent setting aside of the decree would not have the effect of revival of the order of restitution. Restitution was granted by the Executing Court and not by the trial Court. Where a decree is set aside and the suit remains pending, the interlocutory orders passed in the suit revive. This principle would not be applicable to orders passed in execution proceeding. Mr. D. P. Sahoo, the learned counsel for the petitioner, is, therefore, correct in his submission that the executing Court exercised jurisdiction with material irregularity in finding that the order dated 1-3-1977 still holds good. The impugned order is, accordingly, set aside.
10. Mr. P. Palit, the learned counsel for the defendants, submitted that pursuant to the impugned order the defendants have already got delivery of possession. Mr. D. P. Sahoo, submitted that the delivery of possession is a paper transaction and the plaintiff is yet continuing in possession. In the Executing Court this question has also been raised. However, in view of order of status quo passed by this Court, the Executing Court left the matter as it is. Since no decision has been taken by the Executing Court, the matter may be agitated thereafter the disposal of this civil revision. In that view, without ascertaining the nature of delivery of possession which would require evidence to be gone into. I ought not decide the controversy in this civil revision.
11. It will be sufficient if I quote a passage from the decision of the Division Bench reported in (1982) 53 Cut LT 78 : (AIR 1982 Orissa 86) (Rama Subudhi v. Bhagirathi) which reads as follows : --
"The Civil Procedure Code contains various provisions as to when actual, joint or symbolical possession can be given. Possession referred to in Sub-rules (1) and (3) of Order 21, Rule 35 is khas or actual possession, while that referred to in Sub-rule (2) and Rule 36 is formal or symbolical possession. If the immovable property of which possession is directed by the decree to be delivered to the decree holder is in possession of the judgment-debtor, actual possession must be delivered to the decree-holder under Sub-rule (1) of Rule. 35. Where it is in possession of a tenant or other person entitled to occupy the same, only symbolical possession can be delivered and that is to be done under Rule 36. Symbolical possession may in such cases operate as actual possession against the judgment-debtor. In the present case, the decree-holder did not apply for symbolical possession under Order 21, Rule 36. The prayer was for possession issued by the Court says that the decree-holder must be put in possession and the process server was authorised to remove any person bound by the decree who refused to vacate. The executing Court found that the requirements of Sub-rule (1) of Rule 35 of Order 21 were not complied with and that a false return was made as if they were complied with. On the finding of the executing Court that the statutory requirements were not complied with, the possession obtained by the decree-holder may be correctly described as paper possession only. The characterisation of possession as symbolical is hardly justified and runs counter to provisions of Order 21, Rule 35, Civil Procedure Code. The so-called paper possession or possession on paper is not delivery of possession actual, formal or symbolical."
I have no doubt that the Executing Court shall keep the aforesaid principle in mind while deciding the controversy.
12. In the result, the civil revision is allowed. There shall be no order as to costs.