Sunday, 3 February 2019

Whether court should order restitution if there is no variation or reversal of decree of order?

Section 144 applies to a situation where a decree or an
order is varied or reversed in appeal, revision or any other
proceeding or is set aside or modified in any suit instituted
for the purpose. In that situation, the Court which has passed
the decree may cause restitution to be made, on an application
of any party entitled, so as to place the parties in the
position which they would have occupied but for the decree or
order or such part thereof as has been varied, reversed, set
aside or modified. The court is empowered to pass orders which
are consequential in nature to the decree or order being varied
or reversed.
In the present case, the interim order of the Trial court
did not require the defendant to hand over the possession to
the plaintiff. There was no decree or order of the Trial court
by virtue of which the appellant was given possession of the
property, nor did any decree or order mandate that the
respondent hand over possession to the appellant.
In these circumstances, the provisions of Section 144,

CPC were not attracted there being no variation or reversal of
a decree or order as contemplated by Section 144.
The remedy of the first respondent, if any, did not lie
in an application for restitution before the executing court
under Section 144, CPC. The executing court was justified in
declining to entertain the application under Section 144, CPC.
The order of the first appellate court which has been
affirmed by the High Court was unsustainable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 880 OF 2019
(Arising out of SLP(C) No. 2378 of 2006)

MURTI BHAWANI MATA MANDIR Vs RAMESH & ORS. 

Dr. Dhananjaya Y. Chandrachud, J.
Dated:January 21, 2019

Leave granted.
This appeal arises from a judgment of a learned Single
Judge of the High Court of Madhya Pradesh at its Bench at
Indore. A suit1 was instituted in the Court of the Civil
Judge, Class II, Sardarpur, Dist. Dhar (M.P.) by one Ganeshi
Lal claiming as the next friend of the diety situated at
Bhawani Mata Mandir, Gram Dasai, Tehsil Sardarpur. The suit
was for a permanent injunction against Geetabai (since
deceased) and respondent Nos. 1 and 2 restraining them from
interfering with the possession of the plaintiff over the
agricultural land in dispute.
1Suit No. 60/A/77

The issues which were framed in the suit for the
conclusion were as follows:
“Sl.
No.
I S S U E S CONCLUSION
1. Whether on land bearing
Survey No. 1630, 1631 &
1632 belonging to the
ownership Murti Bhawani
Mata Mandir situated in
village Dasai possession
of plaintiff is
continuously coming
through Dulichand son of
Shrichand?
No
2(a) Whether plaintiff is
Pujari of Bhawani Mata
Mandir ?
2(b) If plaintiff is Pujari,
then in what capacity ?
Judgments not
necessary
3. Whether on 14.6.77
defendants made an
attempt to take
possession illegally on
suit land and destroyed
the crop.
No
4. Whether on Onkarlal was
the husband of defendant
No. 1 i.e. Pujari of
Murti Bhawani Mata
Mandir?
Judgment not
necessary
5. Whether after Onkarlal
suit land remained in
possession of defendant
no. 1 in the capacity of
Pujari ?
Judgment not
necesssary
6. Relief and cost ? Suit dismissed
with cost”
The suit was dismissed by the Trial court on 11 April
1981 on the ground that the plaintiff had failed to prove
possession over the land in dispute. Both the first appeal as

well as the second appeal were dismissed on 23 March 1982 by
the District Judge and on 5 May 1984 by the High Court.
After the disposal of the second appeal, Geetabai filed
an application under Section 144 of the Code of Civil
Procedure, 1908 (“CPC”) for the restoration of possession of
the disputed land and for awarding mesne profits, before the
Judge, Civil Court, Class I, Sardarpur M.J.C. No. 21 of 1986.
The application was dismissed on 24 August 1998 by the
executing court. The appeal filed before the Additional
District Judge by the first respondent was allowed and the case
was remanded back to the executing court. The appellant filed a
second appeal before the High Court which was dismissed in
limine by the impugned order dated 3 December 2004 on the
ground that no substantial question of law arose.
Assailing the judgment of the High Court, the appellant
submits that the provisions of Section 144 of the CPC were not
attracted. The Additional District Judge was, it was urged, not
justified in remanding the proceedings back to the executing
court. Learned counsel appearing on behalf of the appellant
submits that the plaintiff was not placed in possession by the
court under any decree or order which was ultimately reversed
on the dismissal of the suit for permanent injunction. In the
circumstances, Section 144 was not attracted. Learned counsel
submitted that in order to attract the application of Section
144, three conditions must be satisfied:
(i) Restitution sought must be in respect of a decree or

order which has been varied or reversed;
(ii) The party applying must be entitled to the benefit
of restitution;
(iii) The relief which is claimed must be consequential
to the reversal or variation of the decree or order.
In the instant case, it has been urged that none of these
conditions were satisfied. Moreover, even if it were to be
assumed that the plaintiff had taken possession of the disputed
land during the pendency of the suit, it was urged that an
application under Section 144 would not lie. Moreover, it was
urged that the Trial court did not decide the question as to
whether the respondent was in possession of the disputed land
as is evident from the fact that on issue No. 5 no finding was
returned.
On the other hand, learned counsel appearing on behalf of
the respondent supported the judgment of the first appellate
court and the High Court by submitting that it was the case of
the first respondent that the appellant had taken possession of
the suit land after the order of injunction was passed at the
interlocutory stage. Hence, it was urged that once the suit
for injunction was dismissed, it was open to the defendant to
apply for restitution under Section 144, CPC.
In evaluating the rival submissions, it would be
necessary to advert to the provision of section 144 of the CPC:
“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 properly consequential on
such variation, reversal, setting aside or
modification of the decree or order…….”
Section 144 applies to a situation where a decree or an
order is varied or reversed in appeal, revision or any other
proceeding or is set aside or modified in any suit instituted
for the purpose. In that situation, the Court which has passed
the decree may cause restitution to be made, on an application
of any party entitled, so as to place the parties in the
position which they would have occupied but for the decree or
order or such part thereof as has been varied, reversed, set
aside or modified. The court is empowered to pass orders which
are consequential in nature to the decree or order being varied
or reversed.
In the present case, the interim order of the Trial court
did not require the defendant to hand over the possession to
the plaintiff. There was no decree or order of the Trial court
by virtue of which the appellant was given possession of the
property, nor did any decree or order mandate that the
respondent hand over possession to the appellant.
In these circumstances, the provisions of Section 144,

CPC were not attracted there being no variation or reversal of
a decree or order as contemplated by Section 144.
The remedy of the first respondent, if any, did not lie
in an application for restitution before the executing court
under Section 144, CPC. The executing court was justified in
declining to entertain the application under Section 144, CPC.
The order of the first appellate court which has been
affirmed by the High Court was unsustainable.
Accordingly, we allow the appeal and set aside the
judgment of the High Court dated 3 December 2004. The
application filed by the respondent before the executing court
shall stand dismissed. No costs.
Pending application(s), if any, shall stand disposed of.
...…...….......………………........J.
(DR. DHANANJAYA Y. CHANDRACHUD)
…...…........……………….…........J.
(HEMANT GUPTA)
NEW DELHI,
January 21, 2019

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