Anda di halaman 1dari 15

Restitution Under Cpc

Restitution Under Civil Procedure Code

“Any civilized system of law is bound to provide remedies for cases of what has been called
unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or
some benefit derived from, another which it is against conscience that he should keep.”

Restitution is an ancient institution which has had an established position in the history of law
and justice. It has its historical origin in the middle Ages and can mainly be found in the
Germanic Common laws. Oxford English Dictionary defines ‘restitution' as “an act of restoring a
thing to its proper owner”. The word in its etymological sense means ‘restoring to a party on the
modification, variation or reversal of a decree or order, what has been lost to him in execution of
decree or order of the court or in direct consequence of a decree or order'. To cite Black's Law
Dictionary, the term has been defined in three senses, viz.(1) return or restoration of some
specific thing to its rightful owner or status; (2) compensation for benefits derived from a wrong
done to another; (3) compensation or reparation for the loss caused to another. As far as Indian
Code of Civil procedure is concerned, though the term “restitution” has not been defined in the
Code, it has got its statutory recognition in the section 144. The Section reads as follows-

144. Application for restitution.—(1) 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 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 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, 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
properly consequential on such variation, reversal, setting aside or modification of the decree or
order]. Explanation.—For the purposes of sub-section (1), the expression ― “Court which
passed the decree or order” shall be deemed to include,— (a) where the decree or order has been
varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the Court of first instance
which passed such decree or order; (c) where the Court of first instance has ceased to exist or has
ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order
was passed were instituted at the time of making the application for restitution under this section,
would have jurisdiction to try such suit.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which
could be obtained by application under sub-section (1).

Restitution is not a new concept and section 144 is merely recognition of the principle of equity
and justice prevalent for a long time. The objective behind the Section 144 is that no person
should be allowed to enjoy a benefit derived pursuant to an order/judgment of a court if such
order/judgment is ultimately finally not sustained. The provision relating to s.144 only intends to
regulate the inherent power of the court in that behalf, which the court can exercise suo motto
whenever justice of the case demands so. The Court in a very landmark judgement of Binayak
Swain v. Ramesh Chandra Panigrahi,laid down the doctrine as follows-

“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 of 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 same position they were in at the time
when the Court by its erroneous action had displaced them from.”

Throwing light on the importance of this doctrine, the Supreme Court in South Eastern Coal
Fields Limited v. State of M.P. said-

“Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an
element of chance in any litigation. Unscrupulous litigants may feel encouraged to approach the
courts, persuading the court to pass interlocutory orders favourable to them by making out a
prima facie case when the issues are yet to be heard and determined on merits and if the concept
of restitution is excluded from application to interim orders, then the litigant would stand to gain
by swallowing the benefits yielding out of the interim order even though the battle has been lost
at the end. This cannot be countenanced.”

It will be wrong to assume that it is the act of the court being wrongful or a mistake or error
committed by the court which attracts the applicability of the doctrine of restitution. The real test
is whether on account of an act of the party persuading the court to pass an order, or an
unsustainable holding by the Court, there has resulted one party gaining an advantage which it
would not have otherwise earned, or the other party suffering an impoverishment which it would
not have suffered but for the order of the court and the act of such party. One wide area of
applicability of this doctrine is interim injunction. When at the end of the proceedings the court
pronounces its judicial verdict which does not match with and countenance its own interim
verdict, the Courts find nothing irrational in the parties demanding restitution. The Supreme
Court in Commissioner of Income Tax v. Vinod Kumar Didwania held that it is an abuse of the
process of law where interim injunction is obtained and thereafter benefit is derived of the same
by removing the goods of the assessee, from the godowns and then withdrawing the writ petition.
The Supreme Court held that in such a case regardless of the validity of prohibitive order issued
by the Income Tax Authority, the petitioner was liable to restitute the value of goods which were
removed from the godowns. Similarly in DTC v. M/S International Avenues, it was held that any
person who withdraws proceedings without seeking adjudication of the same, or even when
proceedings are dismissed, such plaintiff/applicant/petitioner is bound to restitute the benefit
which it has received under interim orders of the court. A simpliciter withdrawal of proceedings
without restitution of benefit cannot be granted by the court.

So far as the quantum of restitution is concerned, it depends upon the facts and circumstances of
a given case and the Court may take into consideration not only what the party excluded would
have made but also what the party under obligation has or might reasonably have made.
Restitution And The Scope Of Section 144

The ambit of the term ‘restitution' is very wide and Section 144 of the CPC is not exhaustive of
the doctrine. The Court's jurisdiction with regard to restitution can be exercised even when a case
does not strictly fall within the ambit of Section 144. This has clearly been laid down in number
of Supreme Court's cases like Kavita Trehan v. Balsara Hygiene Products Ltd., Gangadhar v.
Raghubar Dayal, State Govt. of A.P. v. Manickchand Jeevraj & Co. In Kavita Trehan's case the
court para 16 says that “the Law of Restitution encompasses all claims founded upon the
principle of unjust enrichment” be it in equity or under any law. One more widening provision is
Section 151 of the CPC, under which the courts have inherent power to order restitution even
when the section 144 cannot be applied. There are several cases on this point. One case is Ram
Rattan v. Banarsi Lal in which Patna High Court set aside a sale on an application under order
21, rule 90, but ordered the judgement-debtor, mesne profits under s 151 from the decree-holder
purchaser, for the period he was in possession. Another case is Prasad v. British Insulated
Calendars Cables Ltd., in which the standard rent fixed under the West Bengal Premises Rent
Control Act 1950, was reduced in appeal, by the Rent Controller. The Court in the present case
held that a claim for restitution of the excess rent paid under the order of the controller was not
maintainable under section 144. However, the court agreed that it could be sustained on general
principles of restitution outside the scope of S.144. One more case on the similar lines is Rakesh
Singhal v. Fifth Addl. District & Session Judge, Bulandshahr. In the instant case the plaintiff, in
a suit for injunction against the defendants for restraining them from interfering with the
construction of a wall in a passage, wrongly obtained an ex parte interim injunction by
misleading the court in as much as the sale deed, on the basis of which the plaintiff claimed
ownership of the suit property was not placed before the court and the defendants were not heard
before passing the order of interim injunction. The plaintiff, however, completed the construction
of the wall after obtaining the decree, and then applied for the withdrawal of the suit, praying for
dismissal of the injunction application, as ‘not pressed'. The Court held that the order can be
passed for demolition of the wall under section 151 even if section 144 cannot be applied in this
case. Jamaluddin v. Mirza Quader Baig, is another case in which the Court held that it can
restore possession in exercise of its inherent powers under Section 151 of CPC and there was no
necessity of filing a petition under Section 144 of CPC.

In Sujit Pal v. Prabir Kumar Sun, the Court invoked its inherent power to grant temporary
mandatory injunction by directing the police to restore possession when the plaintiff in a suit for
permanent injunction and declaration of tenancy was forcibly dispossessed in violation of the
interim injunction. Also, in a case where X sued Y to establish his right to a fund in court, and Y
was allowed to draw the money on giving an undertaking to the court to repay it if X succeeded
in the suit, and Y succeeded in establishing his title; it was held that though the undertaking
given by Y did not provide for the payment of interest, the court had inherent power to order Y
to repay the money with interest. Again in Priya Brata Maity v. State of West Bengal, where a
landlord, with a blatant disregard to material fact and provisions of WB Municipal Act,
succeeded in getting an order to demolish premises with the help of police and the chairman of
the local corporation, the Court held that the it can direct restitution of tenant by directing
landlord and municipality to reconstruct the building, if necessary, and put the tenant in original
possession.
Extending the scope and applicability of the section 144, the Allahabad High Court in Jogendra
Nath Singh v. Hira Shahu held that a case for restitution would fall within the purview of section
144, even when the decree is set aside in a separate suit, or where the court itself sets aside its
own ex parte decree. The view has now been firmly affirmed by the 1976 Amendment Act which
declared it in the clear terms that the restitution can be availed in cases where a decree is set
aside or modified in another subsequent suit filed in another court for that purpose. On the
similar lines, in cases like Ankamma v. Basavapunniah, Choudhry Hari Ram v. Pooran Singh
and Harihar Sao v. Bhagwan Das, various High Courts held that section 144 will apply even
when the decree or order is reversed. Furthermore Section 144 CPC speaks not only of a decree
being varied, reversed, set aside or modified but also includes an order on a par with a decree.
The scope of the provision is wide enough so as to include therein almost all the kinds of
variation, reversal, setting aside or modification of a decree or order.

Despite having such a wide ambit, the doctrine has also got some limitations. For example,
laying down an important principle, the Court in Montharampallipadipura Attakoya v.
Neelathupura Kunhiseethikoya Thangal held that the recourse to the principle of restitution will
be of no avail as against a party to the suit who get the property otherwise than under the decree
or the order of the court. Therefore, the cases where the petitioner gets the possession of the
property under executive order, its restitution cannot be ordered. Secondly, when it is impossible
to restore the aggrieved party to the earlier position or undo the effect of a wrong order, the court
can choose to not disturb its earlier order.

Conclusion

The doctrine of restitution as envisaged under the CPC is an enabling provision in consonance
with the principles of equity and justice. Section 144 together with section 151 covers almost all
such cases and ensure that a person should not be allowed to enjoy a benefit derived pursuant to
an order/judgment of a court if such order/judgment is ultimately finally not sustained. In such
cases, it is generally the aggrieved party who ask the court to grant order of restitution. But, the
he Court can also suo motto give an order of restitution whenever it thinks fit in the interest of
justice. For example, in Jamaluddin v. Mirza Quader Baig, the Court held that it can restore
possession in exercise of its inherent powers under Section 151 of CPC and there was no
necessity of filing a petition under Section 144 of CPC. There is no dearth of cases where the
court agreed to apply general principles of restitution even outside the scope of S.144. Extending
the scope and applicability of the section 144, the Allahabad High Court in Jogendra Nath Singh
v. Hira Shahu held that a case for restitution would fall within the purview of section 144, even
when the decree is set aside in a separate suit, or where the court itself sets aside its own ex parte
decree. The scope of the provision is wide enough so as to include therein almost all the kinds of
variation, reversal, setting aside or modification of a decree or order. Section 144 tries to restore
the aggrieved party in the original position as far as possible. But, wherever it is impossible to
restore the aggrieved party to the earlier position or undo the effect of a wrong order, the court
can simply choose to not disturb its earlier order.
Restitution W.r.t. to Civil Procedure Code
1908
· The expression restitution has not been defined in the code, but it is “an act of restoring a thing
to its proper owner.” Restitution means restoring of anything unjustly taken from another. It
provides for putting a party in possession of land, tenement or property, who had been
unlawfully dispossessed, deprived or disseised of it.

· In other words, restitution means restoring to a party the benefit which the other party has
received under a decree subsequently held to be wrong. The word restitution in its etymological
sense means restoring to a party on the modification, variation or reversal of a decree what has
been lost to him execution of the decree or in direct consequence of the decree.

Evolution
· Any civilized system of law is bound to provide remedies for cases of what has been called unjust
enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit
derived from, another which it is against conscience that he should keep.

· Restitution is an ancient institution which has had an established position in the history of law and
justice. It has its historical origin in the middle Ages and can mainly be found in the Germanic Common
laws. Oxford English Dictionary defines ‘restitution’ as “an act of restoring a thing to its proper owner”.

· The word in its etymological sense means ‘restoring to a party on the modification, variation or
reversal of a decree or order, what has been lost to him in execution of decree or order of the court or
in direct consequence of a decree or order’.

· To cite Black’s Law Dictionary, the term has been defined in three senses, viz. (1) return or restoration
of some specific thing to its rightful owner or status; (2) compensation for benefits derived from a wrong
done to another; (3) compensation or reparation for the loss caused to another. As far as Indian Code of
Civil procedure is concerned, though the term “restitution” has not been defined in the Code, it has got
its statutory recognition in the section 144.

Scope of the Topic:


· Section 144 of the code embodying the doctrine of restitution does not confer any new substantive
right to the party not available under the general law. The section merely regulates the power of the
court in that behalf. It is the paramount duty of all courts to ensure that they do no injury to any litigant.

· The expression “ the act of the Court” does not mean merely the act of the primary or trial court or
intermediate court of appeal but the act of the court as a whole from the lowest court which entertains
the matter to the highest court which finally disposes the case.
· Moreover, the section is not exhaustive and, therefore, even if the case does not fall within the strict
term of Section 144 of the Code, it is always at the discretion of the Court to grant relief of restitution.

· Further Since the object of the doctrine is to shorten litigation and to afford speedy relief to the party
adversely .affected, and merely lays down a procedure, the provision should be construed liberally.

Legal Analysis
Study of Civil Provisions
The Expression restitution has not been defined in the Code of Civil Procedure, but it is an act of
restoring a thing to its proper owner. In other words, restitution means restoring to a party the
benefit which the other party has received under a decree subsequently held to be wrong. In law
the term ‘restitution’ is used in three senses:

· return or restoration of some specific thing to its rightful owner or status;

· compensation for benefits derived from a wrong done to another;

· Compensation or reparation for the loss caused to another.

Doctrine of Restitution

· In Halsbury’s Laws of England, it is stated, any civilized system of law is bound to provide
remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent
a man from retaining the money of, or some benefit derived from, another which it is against
conscience that he should keep.

· The doctrine of restitution contemplates the case where property has been received by a decree-
holder in execution of a decree, and the decree, or part thereof, is subsequently varied of reversed
on appeal by the judgement-debtor, or even in a separate suit or otherwise, as for instance, on an
application under the Bengal Money Lenders Act or Agriculturist Relief Act.

· The principle of restitution has been statutorily recognised in s 144 of the Code of Civil
Procedure. It does not confer any new substantive right to the party not available under the
general law, but merely regulates the power of the court in that behalf. It is the paramount duty
of all court to ensure that they do no injury to any litigant.

Section 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 to 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, reversed, set aside or modified; and, for this purpose, the Court may
make any order, 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.

Explanation:
A. For the purpose of sub-section (1) the expression “Court which passed the decree or order”
shall be deemed to include,

B. Where the decree of order has been varied or reversed in exercise of appellate or revisional
jurisdiction, the court of first instance;

C. Where the decree or order has been set aside by a separate suit, the court of first instance
which passed such decree or order;

D. Where the court of first instance has ceased to exist or has ceased to have, jurisdiction to
execute it, the court which, if the suit wherein the decree or order was passed were instituted at
the time of making the application for restitution under this section, would have jurisdiction to
try such suit.

3. No suit shall be instituted for the purpose of obtaining any restitution or other relief which
could be obtained by application under sub-section (1).

· Section 144 enables the successful party to be placed in status quo ante and empowers the court
to order restitution when a decree or an order is varied or reversed in any appeal, revision or
other proceeding.

· There was however a conflict of judicial opinion as to whether the provision of S. 144 applied
to cases also where a decree was set aside or modified otherwise than on an appeal. The
amendment made in S. 144 clarifies the position that it is applicable to such cases also where a
decree is set aside or modified otherwise than on an appeal.

· Under the Code of Civil Procedure (Amendment) Act 1956, the benefit of S. 144 has been
enlarged so as to comprise within its orbit not only a decree but also an order, with the result that
upon the ultimate reversal or variation of a judgment or order the section enjoins that the court of
first instance shall on the application of the party concerned cause restitution to be made so as to
place the parties in the position which they would have occupied but for the erroneous judgment
or order.

· S.M. Deshmukh v. Ganesh Krishnaji Khare: The doctrine of restitution is based on the
principle that the first and highest of the duties of all the Courts is to take care that the act of the
Court does no injury or wrong to the suitors. The duty or jurisdiction of the Court to grant
restitution is inherent in the general jurisdiction of the courts to act fairly and rightly in the
circumstances towards all parties involved
Requisite conditions for the applicability of restitution:
· The restitution sought must be in respect of that decree or order which had been varied or
reversed;

· The applicant has lost, or been deprived of, something by reason of the decree or order which
has been subsequently varied or reversed;

· The party applying for restitution must be entitled to a benefit under a reversing decree or
order;

· The relief claimed must be properly consequential on such variation of the decree or order; and

· The applicant must be a party to the litigation which has terminated according to law.

· If the aforesaid conditions are satisfied, it gives no choice or discretion to the Court, and the
only course it has to follow is to order restitution to the party which had suffered loss on account
of the erroneous decree or order.

· Section 144, Civil Procedure Code, imposes no limitations on the rights of the judgment-debtor
to get back the benefit, to which he is entitled under the appellate Court’s decree, which has
reversed or varied the trial court’s decree. On a perusal of S. 144, it is obvious that the question
whether the balance of convenience is in his favour or not, is irrelevant for the purpose of
granting restitution.

· Section 144 obviously consists of two parts. The first part postulates the variation or reversal of
a decree or an order in an appeal. The second part is more important. Restitution can be granted
on the application of any party entitled to any benefit by way of restitution, and it has to be
determined by the court granting restitution that the party who has given the application is
entitled to the benefit of restitution.

· Such an inference cannot be drawn in favour of a person who is a mere trespasser. Where the
lower appellate court as well as the High Court held that the sale deed in favour of the appellant
was null and void and no rights were conferred on him by virtue of the same, the appellant was a
mere trespasser and he did not fulfil the second condition of section 144, C.P.C.

· In S.N. Banerji v. Kuchwar Lime and Stone Co. Ltd., it was held that where the persons who
have been dispossessed were found to be trespassers and persons in subsequent possession were
lawfully in possession by virtue of a valid lease in their favour, it was not necessary for the ends
of justice that the trespasser should be restored to possession though they might succeed in a suit
for possession. That case was followed in Mahaden Prasad v. Calcutta Dyeing and Cleaning Co.

Section 151 Inherent Powers to Grant Restitution:

Sec 151. Saving of inherent powers of court.-


Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court
to make such orders as may be necessary for the ends of justice, or to prevent abuse of the
process of the court

Explanation:
· it is a saving clause and only gives legislative recognition of an age-old and well established
principle that every court has inherent power to do that real and substantial justice between the
parties for the administration of’ which alone it exists. It does not confer any substantive right on
parties but is meant to get over the difficulties arising from rules of procedure.

· Section 15l gives no right to a party to make an application. It gives power to the court to pass
such orders as it thinks fit. Section 151 is really intended to prevent courts from being rendered
impotent by any omission in the Code; but it is not intended to override the main enactment of
the law.

· The court has inherent powers, in order to advance the cause of justice and not to allow justice
to be defeated, to issue orders in the nature of even injunctions. Therefore, it cannot be said that
the court has no power to issue stay of a suit under its inherent powers unless the case clearly
falls within the four corners of Order XXXIX, Rules 1 and 2.

· The Code of Civil Procedure is not exhaustive and S. 151 does not confer any new powers but
only makes statutory recognition of the inherent power of the court to do certain things ex debito
justitiae (to act as justice demands). It is in the ends of justice to avoid needless expense and
inconvenience to

· Parties. So the court will not refuse relief merely because the application there for is made
under a wrong section or because there is some technical defect.

· The abuse of the process of the court may be the result of an act of $he court itself (default its
officers) or may be done by the party (misrepresentation). In all such cases the court is
empowered to remedy the wrong.

· The inherent powers exercised under S. 151, C.P.C. are discretionary. In considering the
question of propriety in invoking the power, the court should take into account several matters,
some of which are the complexity of the question involved, availability of a more complete and
efficacious remedy by means of a suit and the apparent justice of the claim. These are not
exhaustive but merely illustrative. They would vary according to the facts and circumstances of
each case. No hard and fast rule can be laid down.

· Where the averments in the application did not make out a case as to how the exercise of the
inherent power of the court was necessary for the ends of justice or to prevent abuse of the
process of the court and the applicant did not come to the court with clean hands and had
suppressed the facts and the case involved complexity of facts and the justice of the claim was
adverse to the applicant, it was held that there was no case for the exercise of inherent powers in
favour of the applicant.

· Where the possession has been taken forcibly by a landlord/defendant during the pendency of
the proceedings, i.e., when the application for temporary injunction restraining
landlord/defendants from interfering with possession is dismissed by the trial court and before
filing the appeal, even though S. 144 of the Code of Civil Procedure may not strictly apply, the
court in exercise of its inherent jurisdiction under S. 151 can grant restitution. ‘By invoking the
inherent jurisdiction the Court would be justified to do justice and put back the parties in the
same position in which they were, but for the order of the trial court.

· The Court has power and jurisdiction under section 151 of the Code to grant police help to
implement its order of injunction.

Illustrations of Inherent Powers:

The court has an inherent power under S. 151, C.P.C.:

· To consolidate suits and appeals including appeals to the Supreme Court;


· To postpone the hearing of suits pending the decision of a selected action or where some of the
issues are common in another pending suit;
· To stay cross-suits on the ground of convenience;
· To allow a defence in forma pauperis,

· To grant restitution apart from the provisions of S. 144, C.P.C.; Where the court rectifies a
mistake in a decree in the exercise of its inherent powers, it has jurisdiction to order restitution of
any benefit which may have been received wrongly by the persons who were not entitled to such
benefits but for the mistake in the decree;

· To add a party or to transpose parties, or where the appeal is filed against dead persons to allow
the appellant to add legal representatives of the deceased as parties in a proper case;
· To entertain the application of a third person to be made a party;
· To punish summarily by imprisonment for contempt’s of court committed by the publication of
a libel out of court;
· To stay the drawing up of the court’s own orders or to suspend their operation, if the necessities
of justice so require;
· To stay the carrying out of a preliminary order pending appeal;

· To amend decrees by correcting errors in cases not covered by S. 152. The court has an
inherent jurisdiction to rectify its own mistake and to do justice between the parties where
injustice has been done to them due to the mistake of the court;

Gangadhar v. Raghubar Dayal:


· Broadly speaking, restitution 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 waiting for the
final decision in the suit apply for being put back in possession, i.e., being placed in the same
position which he occupied before he was ejected 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 entitled
the tenant to be put back in possession.

Statutory Provision
The power of a court to grant restitution is not confined to the cases covered by the provisions of
this section. It extends also to cases which do not come strictly within s 144. Under s 151 courts
has inherent power to order restitution irrespective of s 144. Where the standard rent fixed by the
Rent Controller under the West Bengal Premises Rent Control Act 1950, was reduced in appeal,
it was held that a claim for restitution of the excess rent paid under the order of the controller
was not maintainable under this section but it could be sustained on general principles of
restitution. The principle of the restitution will be of no avail as against a party to the suit who
get the property otherwise than under the decree or the order of the court. Hence, where the
petitioner gets the possession of the property under executive order, its restitution cannot be
ordered.

Role of Judiciary

Judicial Pronouncements
· The Lordship of the Privy Council said: “It is the duty of the court under section 144 of the
Civil Procedure Code to place the parties in the position which they would have occupied for
such decree or such part thereof as has been varied or reserved. Nor indeed does this duty or
jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the
court to act rightly and fairly according to the circumstances towards all parties involved.”

· The Allahabad High Court has however taken the view that a case for restitution would fall
within the terms of s 144, even when the decree is set aside in a separate suit, or where the court
itself sets aside its own ex parte decree. This view has now been confirmed by the Amendment
Act 1976 which declares in express terms, that the restitution is available in cases where a decree
is set aside or modified in another subsequent suit filed in another court for that purpose.

· The High Courts of Madras, Madhya Pradesh, and Patna have also held that s 144 will apply
when the decree or order is reversed, otherwise than in appeal as in an independent proceeding or
by the legislation. When a sale was set aside on an application under O 21, r 90, the judgement-
debtor was awarded mesne profits under s 151 from the decree-holder purchaser for the period
he was in possession.

Land Mark Cases

Cases on Section 144

Rodger v. Comptoir descompte de Paris:


“One of the first and highest duties of all courts is to take care that the act of the court does no
injury to any of the suitors and when the expression, the act of the court is used, it does not mean
merely the act of the primary court, or of any intermediate court of appeal, but the act of the
court as a whole from the lowest court which entertains jurisdiction over the matter up to the
highest court which finally disposes case.”

Jai Berham v. Kedar Nath Maewari,


A sale in execution of a decree as set aside on the grounds that the sale certificate comprised
property different from that which was attached. The property was purchased by a stranger to the
decree, and the price paid by him in to court was applied towards satisfaction of the decree. The
judgement-debtor applied for possession

Amba Lal v. Ramgopal,


A, in execution of a money decree, brought property to sale as of his judgement –debtor and
purchased himself. B and C who held decrees against the same judgement-debtor, applied for
rateable distribution. A, therefore, paid the sale proceeds into court and they were rateably
distributed between A, B and C. Co-sharers of the judgement then obtained a decree exempting
part of the property from the operation of the sale. The amount available for rateable distribution
was, therefore, reduced and A was entitled to a proportionate refund from B and C.

S. Prabhavathi vs Rohini Kilaru and Anr.


The Supreme Court while observing that s 144 of CPC incorporates only a part of the general
law of restitution and not exhaustive, laid down as under:

“The jurisdiction to make restitution is inherent in every court and will be exercised whenever
the justice of the case demands. It will be exercised under inherent powers where the case did not
strictly fall within the ambit of Section 144, Section 144 opens with the words "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...."

Jamaluddin v. Mirza Quader Baig,


It was held that for restoration of possession to the tenant, who was dispossessed by the landlord
from the suit premises forcibly in violation of the orders of interim injunction, there is no
necessity of filing a petition under Section 144 of CPC. The Court can restore possession in
exercise of its inherent powers under Section 151 of CPC. Similarly,

In Sujit Pal v. Prabir Kumar Sun,


It was held that when the plaintiff in a suit for permanent injunction and declaration of tenancy
was forcibly dispossessed in violation of the interim injunction, the civil Court can invoke its
inherent power to grant temporary mandatory injunction by directing the police to restore
possession. The inherent jurisdiction to pass an order in restitution can be exercised by a persona
designate entrusted with functions of a court as for example by a district munsiff to whom the
decree is transferred for execution under s 66 of the Madras Village Courts Act 1889.

Cases on Section 151:

Ghuznavi v. Allahabad Bank Ltd:


The exercise of such inherent power can only be invoked where the court is satisfied that the
provisions of the Code are not sufficient to meet the exigencies of the case: Justice Asutosh
Mookerjee in the case of Ghuznavi v. Allahabad Bank Ltd)

Hukam Chand v. Kamalanand Singh:


· Justice Woodroff in Hukum Chand v. Kamalanand Singh, observed with reference to the
applicability of S. 151 of the Code:

· “I am not aware of any authority which has laid down that the Code of Civil Procedure is
exhaustive. The essence of a Code no doubt is to be exhaustive on the matters in respect of
which it declares the law, on any point specifically dealt with by it. In respect of such matters the
court cannot disregard or go outside the letters of the enactment according to its true
construction.

· The Code does not affect the power and duty of a court where no specific rule exists to act
according to justice, equity and good conscience, though in exercise of such power it must be
careful to see that its decision is based on the sound general principles and is not in conflict with
them or the intention of the Legislature.

· “The court has, therefore, in many cases where the circumstances require it acted upon the
assumption of the possession of an inherent power to act ex debito justitiae and to do that real
and substantial justice for the administration of which alone it exists.”

· It has, therefore, to be noted that the Code is not exhaustive and in matters with which it does
not deal the court will exercise an inherent jurisdiction to do justice between the parties as
warranted under the circumstances and which the necessities of the case require.

Padam Sen V. The State of Uttar Pradesh:


· It has been held by their lordships of the Supreme Court in Padam Sen v. The State of Uttar
Pradesh, that the inherent powers of the court are in addition to the powers specifically conferred
on the court by the Code.

· They are complementary to those powers and therefore it must be held that the court is free to
exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those
powers is not in any way in conflict with what has been expressly provided in the Code or
against the intentions of the Legislature. It is also well recognised that the inherent power is not
to be exercised in a manner which will be contrary to or different from the procedure expressly
provided in the Code.

Conclusion:
Even if a case is not come under the section 14 of the CPC, s. 151 gives an inherent right to the
courts to grant restitution in order to dispense justice to the parties. It is not necessary that if the
case is not covered under the specified provision then no restitution can be granted it is inherent
in the courts to grant restitution for meeting
True meaning of restitution in the light of Section 144 of the Code

The law on restitution under Section 144 of the CPC is quite well settled. It vests expansive
power in the Court but such power has to be exercised to ensure equity, fairness and justice for
both the parties. It also flows from more or less common stand of parties on the principle of law
that for ascertaining the value of the property which is no longer available for restitution on
account of sale etc., the Court should adopt a realistic and verifiable approach instead of
resorting to hypothetical and presumptive value.

Section 144 of the CPC reads thus:

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 to 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, 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.

Explanation: For the purposes of sub-section (1), the expression “court which passed the decree
or order” shall be deemed to include,—

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional
jurisdiction, the court of first instance;

(b) where the decree or order has been set aside by a separate suit, the court of first instance
which passed such decree or order;

(c) where the court of first instance has ceased to exist or has ceased to have jurisdiction to
execute it, the court which, if the suit wherein the decree or order was passed were instituted at
the time of making the application for restitutionunder this section, would have jurisdiction to try
such suit.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which
could be obtained by application under sub-section (1).

Settled principles of law governing restitution

It is also one of the established propositions that in the context of restitution the Court should
keep under consideration not only the loss suffered by the party entitled to restitution but also the
gain, if any, made by other party who is obliged to make restitution. No unmerited injustice
should be caused to any of the parties.
Section 144 CPC is rather a statutory recognition of an already existing rule of justice, equity and
fair play and therefore even apart from Section 144 the Court has inherent jurisdiction to order
restitution so as to do complete justice between the parties. The Court has to act rightly and fairly
according to the circumstances, towards all parties involved.

Restitution is for meeting the ends of justice and depends upon the peculiar facts and
circumstances of the case. the Court has a duty that in the matter of restitution justice be done as
per facts of the case. In granting relief of restitution the Court “should not be oblivious of any
unmerited hardship to be suffered by the party against whom action by way of restitution is
taken.”

On the reversal of a judgment the party who received the benefit of an erroneous judgment is
obliged to make restitution to the other party for what he had lost. The Court is also duty bound
to enforce such obligation unless it finds that restitution would be clearly contrary to the real
justice of the case. The party which had received the benefit of the erroneous decree is required
to make the restitution to other party for what he had lost.