Saturday, 25 March 2017

Whether transferee executing court can entertain application for restitution?

The question, therefore, is whether the transferee executing court is a 'Court of first instance' within the meaning of Section 144(1), C.P.C. A bare reading of Sub-section (1) does indicate that the application for restitution would lie when the decree executed is reversed or varied or modified. The doctrine of restitution is based upon the high cardinal principle that the acts of the Court should not be allowed to work in injury or injustice to the suitors. Section 144, therefore, contemplates restitution in a case where property has been received by the decree-holder under the decree, which was subsequently either reversed or varied wholly or partly in those proceedings or other proceedings. In those set of circumstances law raised an obligation on the party that received the benefit of such reversed Judgment to restitute the property to the person who had lost it. In that behalf in Sub-section (2) a right of suit was taken out and an application under Sub-section (1) was contemplated for execution of the decree by way of restitution. Sub-section (1) clearly indicates that it is a 'court of first instance' in which the proceedings in the suit had been initiated and a decree was passed or the suit was dismissed, but subsequently on appeal decreed or vice versa. The court of first instance would, therefore, mean the court which passed the decree or order. The transferee executing court is not the court that passed the decree or order, but the decree was transmitted to facilitate execution of that decree or order since the property sought to be executed or the person who is liable for execution is situated or residing within the jurisdiction of that executing court. Therefore, the court which is competent to entertain the application for restitution is the court of first instance i.e. Administrator's Court (Subordinate Judge) that decreed the suit, and not the court to which the decree was transmitted for execution. The court of first instance of Administrator is now designated as Court of Subordinate Judge, but application for restitution was filed in executing court, namely, the court of District Munsif at Androth. Thus in the face of the language of Section 144, the District Munsif at Androth, by no stretch of imagination be considered to be court of first instance. Its order of restitution is without jurisdiction and, therefore, it is a nullity. The High Court is accordingly right in its conclusion that the order for restitution is clearly vitiated by error of law and lack of jurisdiction. 
Equivalent Citation : AIR 1994 SC 1591
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2422 of 1977
Decided On: 04.08.1993
Neelathupara Kummi Seethi Koya Phangal (dead) by L.Rs.
Vs.
Montharapalla Padippua Attakoya and others
Hon'ble Judges/Coram:
K. Ramaswamy and S. Mohan, JJ.




1. This appeal by special leave arises out of the Judgment and decree in S.A. No. 147/73, Kerala High Court, dated April 1,1977 : reported in 1977 Ker LT 570 AIR 1977 NOC 339The Division Bench held that transferee executing court is not "the Court of first instance" and accordingly set aside the order of the courts below and dismissed the Petition filed under Section 144 C.P.C. for restitution.
2. The respondent-plaintiff filed a suit O.S. No. 6/62 for declaration that the gift deed executed by Muthukoya Thangal, defendant No. 1 in favour of his wife and children on July 27, 1960 was null and void. The suit was transferred to the Administrator's Court (Subordinate Judge), which was ultimately decreed on April 4, 1965. The suit thereafter was dismissed by the appellate court on May 1, 1970 and was confirmed by the High Court on November 3, 1971. The decree in the meanwhile was transmitted for execution and in execution thereof possession was delivered from the appellant to the respondents. After the proceedings terminated in his favour, the appellant filed an application under Section 144 C.P.C. for restitution in the Court of the District Munsif at Androth to which the decree for execution was transmitted and possession was delivered in execution. The High Court found that the Court of the District Munsif, Androth has no jurisdiction to order restitution. Accordingly the application for restitution was dismissed. Thus this appeal. The unamended Section 144 C.P.C. reads as under:
Section 144(1) Where and in so far as a decree is varied or reversed, 'the court of first instance' 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 such part thereof as has been varied or reversed; 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 of such variation or reversal.
3. In 1976 Amendment Act suitable amendment was made and explanations (a) to (c) were added but they have no relevance for the purpose of the case. The question, therefore, is whether the transferee executing court is a 'Court of first instance' within the meaning of Section 144(1), C.P.C. A bare reading of Sub-section (1) does indicate that the application for restitution would lie when the decree executed is reversed or varied or modified. The doctrine of restitution is based upon the high cardinal principle that the acts of the Court should not be allowed to work in injury or injustice to the suitors. Section 144, therefore, contemplates restitution in a case where property has been received by the decree-holder under the decree, which was subsequently either reversed or varied wholly or partly in those proceedings or other proceedings. In those set of circumstances law raised an obligation on the party that received the benefit of such reversed Judgment to restitute the property to the person who had lost it. In that behalf in Sub-section (2) a right of suit was taken out and an application under Sub-section (1) was contemplated for execution of the decree by way of restitution. Sub-section (1) clearly indicates that it is a 'court of first instance' in which the proceedings in the suit had been initiated and a decree was passed or the suit was dismissed, but subsequently on appeal decreed or vice versa. The court of first instance would, therefore, mean the court which passed the decree or order. The transferee executing court is not the court that passed the decree or order, but the decree was transmitted to facilitate execution of that decree or order since the property sought to be executed or the person who is liable for execution is situated or residing within the jurisdiction of that executing court. Therefore, the court which is competent to entertain the application for restitution is the court of first instance i.e. Administrator's Court (Subordinate Judge) that decreed the suit, and not the court to which the decree was transmitted for execution. The court of first instance of Administrator is now designated as Court of Subordinate Judge, but application for restitution was filed in executing court, namely, the court of District Munsif at Androth. Thus in the face of the language of Section 144, the District Munsif at Androth, by no stretch of imagination be considered to be court of first instance. Its order of restitution is without jurisdiction and, therefore, it is a nullity. The High Court is accordingly right in its conclusion that the order for restitution is clearly vitiated by error of law and lack of jurisdiction. We do not find any ground warranting interference. The appeal is dismissed, but in the circumstances without costs.
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