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3. this Court vide Order dated 29.7.2005 admitted the appeal to be heard on the following substantial question of law :

Whether the proceeding under Order 9, Rule 13 of the Code of Civil Procedure is 'the other proceeding' within the meaning of Section 144 of the Code of Civil Procedure ?"
"Section 144, CPC. Application for restitution. (1) Where and in so far as a decree (or an order) - is varied or reversed in any appeal, revision or g 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 well, 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, h 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.

5. The learned Counsel for the appellant has placed reliance on the decision of the Orissa High Court in the case of Garuda Singh Majhi v. Dhana Bai and Ors. . The hon'ble Orissa High Court held:

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 CPC, 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 CPC. Unless the context otherwise requires the term 'set aside' in Section 144 CPC, would carry the same meaning as in Order 9, Rule 13 CPC. When Section 144, CPC 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 CPC. Section 144, CPC in terms, therefore, does not apply to a case where the decree is set aside under Order 9, Rule 13 CPC. 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.

9. We find that the provisions of Section 141 CPC as well as Section 144 CPC, are included in Part 9 of the Civil Code, providing for the miscellaneous provisions and we do not find any substance in to submission that Order 9, Rule 13 proceeding is excluded from the purview of Section 144 CPC and that when an ex parte decree is set aside under Order 9, Rule 13 CPC, the benefit of Section 144 CPC is not available and the same available only when the said ex parte decree is set aside in a separate suit only. If the above proposition is accepted, it will provide for multiplicity of proceeding, whereas the Civil Procedure Code is amended to grant relief expeditiously, avoiding multiplicity of proceedings.

Where and insofar 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 instant case may not strictly fall within the terms of Section 144 ; but the aggrieved party in such a case can appeal to the larger Bench and general powers of restitution inherent in every court.

13. In view of what is submitted above, we hold that a proceeding under Order 9, Rule 13 CPC is included in the other proceeding appearing under Section 144 CPC and when a decree of ex parte is set aside under f Order 9, Rule 13 CPC, the party is entitled to the benefit of a restitution under Section 144 CPC. The substantial question of law is answered as aforesaid.