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Through : Sh. Fanish. K. Jain, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. This is an appeal from the order of a learned Single Judge in an application under Section 144 of the Code of Civil Procedure (hereafter referred to as "the CPC"), seeking restitution on behalf of the decree holder.

2. In this case, the respondent (hereafter referred to as "the decree holder") instituted a suit against the appellant ("BSES") for cancellation of a bill issued by the latter for the amount of `48,83,927/-. During the course of that proceeding, the Civil Judge directed (in an order dated 03.08.1999) the decree holder to deposit `6,00,000/- to the BSES as a precondition to restrain disconnection of EFA (OS) 17/2013 Page 1 electricity supply to his premises. Later, the plaint was returned by the Civil Judge, and the suit was filed before this Court, upon which time the same interim order was made by the Court, in an order dated 24.07.2006. Accordingly, the decree holder paid the amount to the BSES in two equal instalments of `3 lakhs each on 12.08.1999 and 6.09.1999.

4. The learned Single Judge, in the impugned order, held that:

"..............................in view of the principles of restitution as stated under Section 144 CPC, the decree holder is entitled to restitution. Judgment debtor has enjoyed the sum of rupees six lac, pursuant to an interim order passed by this Court. Decree holder shall be entitled to interest from the date of deposit of the sum of Rs. 6 lac till its refund. In my opinion, the rate of interest @ 12 p.a. simple is appropriate and in order. Hence, the present application is allowed. It is ordered that the EFA (OS) 17/2013 Page 2 decree holder shall be entitled to interest @ 12% simple interest on the sum of `6 lac w.e.f. the date of deposits i.e. 12.08.1999 for the sum of `3 lac and 06.09.1999 for the balance of `3 lac, till the date payment was received by the decree holder.........................."

6. Aggrieved by the impugned order, learned counsel for BSES argued that the learned Single Judge, in effect, went behind the decree by ordering recovery of an amount greater than the trial court itself. It was argued that the impugned order contravenes the judgment and order dated 16.3.2011. Concurring with the learned Single Judge's reasoning, thus, would be tantamount to allowing a modification of the decree through Section 144 CPC, which is impermissible and unknown to law.

7. Learned counsel also argued several other issues raised before the Single Judge: that the application of Section 144 CPC is limited to cases where due to the fault of defaulting party, the other party has suffered, and in that case the aggrieved party can seek restitution. It is argued that this is not the case here, as it was the decree holder who EFA (OS) 17/2013 Page 3 proposed the payment of `6 lakhs into Court, rather than a demand put forward by BSES. In support of these arguments, learned counsel argues that the reliance placed by the Single Judge on the decisions of the Supreme Court in Mahjibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai and Ors., AIR 1965 SC 1477 and South Eastern Coalfields Ltd. v. State of Madhya Pradesh and Ors., AIR 2003 SC 4482 are misplaced since the facts of those cases can be distinguished from the present matter. The above mentioned cases are concerned with immovable properties where the original order was set aside by the appellate court and it was in that context that the applications under Section 144 CPC were held to be maintainable as execution petitions. Finally, on the question of the quantum of interest awarded, learned counsel argued that the reasonable rate of interest awarded by banks on fixed deposits from 1999 is not more than 12%, and thus, a greater interest would amount to a penalty, rather than a restitutionary relief to the decree holder.

8. Addressing these submissions, and the issues presented in this case, it is helpful to extract Section 144, CPC, which reads as follows:

"144. 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 in 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, EFA (OS) 17/2013 Page 4 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 property consequential on such variation; reversal, setting aside or modification of the decree of the decree or order.