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8. A perusal of the language of Section 144 of CPC demonstrates that restitution is available in case any decree or 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.

9. Though technically speaking in case there is a reversal of an award by the Civil Court even of the award passed under Section 91 of the MCS Act, the principles of restitution would become applicable. However in the facts of the present case, the same are clearly not attracted.

10. The admitted position in this matter needs to be therefore stated :

The petitioner had advanced a loan to the Partnership Firm M/s Ravindra and Co. and in default had
66. WP 4034 of 2021.odt instituted proceedings under Section 91 of the MCS Act for recovery vide ABN Case No.52/A/76, in which the present respondent was the opponent no.2 in-person. The property in question was mortgaged to secure the aforesaid loan. In the written statement filed on behalf of the Firm as well as present respondent no.1 the claim of the Bank was admitted and a plea for granting of installments was raised, as a result of which, the award came to be passed on 07/06/1976 (pg.17).

13. Thereafter, an application under Section 144 (1) of CPC has been filed by the present respondent no.1 contending that since the auction sale dated 28/08/1978 in pursuance to the award dated 07/06/1976 under Section 91 of the MCS Act was set aside in Special Civil Suit No.87/1989, the respondent no.1 was entitled to restitution.

14. There cannot be any quarrel with the propositions as laid down in Mahijibhai Mohanbhai Barot; Krishna Awaji Ghadge; Kandan and Mrs. Kavita Trehan (supra) relied by learned counsel for the respondent no.1, which enunciate the principles of restitution, however, on the facts of the present case they are clearly not attracted. This is so for the reason that there is no challenge to the award dated 07/06/1976 passed under Section 91 of the MCS Act and therefore in sum and substance there is no reversal of the award passed under Section 91 of the MCS Act at all. What has been challenged is

18. It is thus apparent that when Section 144 of CPC requires the reversal or modification or variance of a decree, in sum and substance, there is no reversal, variance or modification of any decree much less the award dated 07/06/1976 under Section 91 of the MCS Act at all, considering which, the proceedings under Section 144 of CPC itself were not tenable, much less was it permissible for the Court below to have passed the impugned orders.

19. Hence, the impugned order dated 26/04/2014 directing leading of evidence (pg.141) is hereby quashed and set aside. So also the order dated 12/03/2018 (pg.153) is also quashed and set aside and the application below Exh.70 is hereby allowed by directing the learned Court below to decide the application below Exhs.23 and 26, in light of what has been stated in this order, after hearing the respective counsels for the parties within a period of two months from today.