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11. The legal position no doubt is that a right to claim restitution arises, as urged by learned counsel for the appellants, even on an ex parte decree being set aside: see Allahabad Theatres v. Ram Sajiwao, AIR 1949 All 730 and Binavak Swain v. Ramesh Chandra. AIR 1966 SC 948. But this legal position, in our opinion, is not of a universal application. Its applicability will have to be judged in the circumstances of each case. What is restitution ? Broadly speaking, it is the right of a party to being placed in the same position which he occupied before the decree or order which has subsequently been varied or reversed was executed. Suppose a landlord files a suit for ejectment against his tenant. The suit is decreed ex parte and in execution of this ex parte decree the tenant is ejected and the landlord is put in possession. Subsequently the ex parte decree is set aside. The tenant can certainly without wailing for the final decision in the suit apply for being out back in possession, i. e. being placed in the same position which he occupied before he was elected in execution of the ex parte decree which has subsequently been set aside. It is so because the very setting aside of the ex parte decree entitles the tenant to be put back in possession. Similar was the situation in the cases referred to above, even though in different circumstances. Will the same situation, however, obtain if as in the instant case the mere setting aside of the ex Parte decree does not entitle the defendants to the suit to claim possession ? In view of the order dated 29th October, 1951, passed under Section 146. Criminal P. C. only such person was entitled to be put in possession in whose favour a declaration of title was made. Suit No. 377 of 1953 was not a suit for possession, nor was the ex oarte decree passed in this suit of such a nature in execution of which the appellants could be put in possession. They had in fact not been put in possession by the Court passing the ex parte decree in execution of the said decree so that a prayer could be made by the respondents on this decree being set aside to be out back in possession. Here in consequence of the ex parte declaratory decree the appellants were out in possession by the Criminal Court in pursuance of the order dated 29th October, 1951. Passed under Section 146, Criminal P. C. The position in law is that after the Criminal Court puts such person in possession in whose favour subsequent to the order Passed under Section 146, Criminal P. C. a declaration of title had been made, it becomes functus officio: See Mohd. Ashraf Khan v. Abdul Rehman, AIR 1942 Pesh 11. The remedy of the person who has been dispossessed in consequence of a decree passed by the Civil Court either by the Criminal Court or even otherwise on such decree being varied or reversed is to applv for restitution in the Civil Court: see Second Appeal No. 2134 of 1956 decided on 1-2-1971: Surya Datt v. Jumna Datt, 18 All LJ 729 = (AIR 1920 All 190 (2): Arya Pratinidhi Sabha v. Chhotey Lal 1937 All LJ 1107 and Md. Hanif v. Khairat Ali. AIR 1941 Pat 577.