Patna High Court
Mohan Lal Khemka vs Harihar Prasad And Ors. on 10 October, 1996
Equivalent citations: 1997(1)BLJR265
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This civil revision application is directed against the order dated 7th September, 1996 passed by the 1st Additional District Judge, Munger in Misc. Appeal No. 28 of 1996 whereby and where under the learned Additional District Judge dismissed the appeal and affirmed the order dated 26th June 1996 passed by the Sub-Judge-II. Munger in Misc. Case No. 20 of 1993 who allowed the application filed by the opposite party under Section 144 of the Code of Civil Procedure.
2. The undisputed facts in brief are that the petitioner as plaintiff filed T.S. No. 35 of 1962 in the Court of 1st Sub-Ordinate Judge. Munger for declaration of his title in the suit property described in Schedules 1 and II of the plaint and also for realisation of arrears of rent and eviction of the O.P. No. 17, the father of O.P. No. 1. The suit was contested by the opposite party and was dismissed in terms of judgment dated 7th April, 1966. Against the said judgment and decree, the petitioner preferred Title Appellant to of 1966 before the District Judge, Munger which was eventually allowed on 22nd July 1995 by the Additional District Judge v. Munger. Against the judgment and decree passed by the appellate court that father of O.P. No. 1 field appeal in this Court being S.A. No. 173 of 1974. While the second appeal was pending, the petitioner took delivery of possession on 11th July 1976 be executing decree in Execution case No. 6 of 1976. The second appeal which was pending before this Court was ultimately dismissed. The O.P. No. 1 therefore moved to the Supreme Court by filling Civil appeal No. 495 of 1996. The said civil appeal was ultimately allowed by the Supreme Court and the judgment and decree of the High Court and the lower appellate court was set aside and the suit was dismissed by restoring the judgment and decree of the trial court. One more undisputed fact is that after the disposal of the civil appeal by the Supreme Court since the decree was reversed, the O.P. No. 1 because entitled to recover possession of the suit property filed an application under Section 144, C.P.C
3. From the perusal of the impugned orders passed by the learned court below, it appears that after the application was filed by the opposite party under Section 144 CPC notices were issued to the petitioner but in spite of knowledge of proceedings, the petitioner did not appear and ultimately an order for restitution of the property was passed against the petitioner and necessary direction was issued for issuance of delivery of possession. After the final order under Section 144, CPC was passed, the petitioner instead of challenging the final order in appeal, filed an application for recall of the final order dated 21.8.93. The petitioner filed another application praying therein that the order dated. 21..8.1993 in the matter of delivery of possession be treated to have been recalled and abandoned. The trial court by the impugned order came to a finding that the petitioner was lingering the restitution of the property by filing applications one after another on technical grounds. The trial court, therefore, ordered for issuance of writ of delivery possession. The said order was challenged by the petitioner in appeal before the District Judge, Munger which was dismissed by the 1st Additional Judge, Munger. The lower appellate court also came to finding that the petitioner, as a matter of fact, is evading delivery of possession of the property in execution of final order dated 21.8.1993 passed under Section 144, CPC
4. Mr. Srinath Singh, learned Senior counsel appearing on behalf of petitioner made a very convincing argument and tried to point out irregularities in the proceeding and lacuna in the orders passed by both the courts below. The learned Counsel submitted that Section 144, CPC contemplates that in the event a judgment or decree is reversed in appeal or revision, the court on the application for restitution shall place such party in position which he would have occupied. In other words, the submission of the learned Counsel was that since there is no evidence that possession of the property was taken from the O.P. No. 1 the application for restitution at the instance of O.P. No. 1 was not maintainable. There is no substance in the submission made by the learned Counsel inasmuch as both the courts have come to finding that the application for restitution was maintainable by the concerned opposite party.
5. The principle of doctrine of restitution is that on the reversal of the judgment or order, the law raises an obligation on the party to the record who receive the benefit of erroneous judgment or order, to make restitution to the other party for what he has lost and it is attitude of the court to enforce that application unless it is shown that restitution would be clearly contrary to the interest of justice. The obligation arises automatically on the reversal of modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree of the court in making the restitution is bound to restore the parties, so far they can be restored to the same position they were in the time when the court by its erroneous action had displaced them from.
6. In Union Carbide Corporation etc. v. Union of India etc. the Apex Court held as under:
But, in the present case, Section 144, CPC does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the Court. A litigant should not go back with the impression that the judicial process so operated as to weaken his position and whatever it did on the faith of the court's order operated to its dis-advantage. It is the duty of the Court to ensure that no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of he court's order. Both on principle and authority it becomes the duty of the Court-as much moral as it is legal-to order refund and restitution of the amount to the UCC if the statement is set aside.
In Binayak v. Ramesh 1996 3 SCR 24 : A.I.R. 1996 SC 948 this Court dealing with scope of Section 144, CPC observed:
The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution on all that has been done under the erroneous decree and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from.
(P. 25 of SCR): (at p. 950 of AIR) In Jai Berham v. Kedar Nath Marwari A.I.R. 1922 PC 269 at p. 271, the Judicial Committee noticed that:
The auction-purchases have parted with their purchase money which they paid into Court on the faith of the order of confirmation and certificate of sale already referred to..
and said:
...and it would be inequitable and contrary to justice that the judgment-debtor should be restored to this property without making good to the auction purchaser the moneys which have been applied for his benefit.
In L Guran Ditta v. T.R. Ditta A.I.R. 1935 PC 12 Lord Atkin said:
The duty of the Court when awarding restitution under Section 144 of the Code is imperative. It shall place the applicant in the position in which he would have been if the order had not made; and for this purpose the Court is armed with powers (the 'may' is empowering, not discretionary) as to mesne profits, interest and so forth. As long ago as 187 the Judicial Committee in (1871) 3 PC 465 made it clear that interest was part of the normal relief given in restitution and this decision seems right to have grounded the practice in India in such cases..
In Jagendra Nath Singh v. Hira Sahu A.I.R. 1948, All 252 (FB) Mootham J. observed:
Every Court has a paramount duty to ensure that it does no injury to any litigant and the provision of Section 144 lay down a procedure where effect can be given to that general provision of the law. The Court should be slow so to construe this Section as to impose a restriction upon its obligation to act right and fairly according to the circumstances towards all parties involved'.
7. Having regard to the facts and circumstances of the case particularly the admitted position, that pursuant to the decree which was subsequently, reversed by the Supreme Court, the petitioner got possession of the suit property and therefore, he cannot be allowed of depriving the opposit party from their rightful claim of restitution. I have, therefore, no hesitation in holding that there is neither any jurisdiction error nor any illegality of irregularity in the impugned order passed by the court below and, therefore, I am not inclined to interfere with the order in the exercise of my revisional jurisdiction.
8. The civil revision application is accordingly dismissed.