Sunday, 7 February 2021

Whether the trial court should restore possession of suit property to the party successful in the second appeal even though the appellate court has not directed restitution?

 Respondent no.1/original plaintiff raised objection to the effect that in favour of the petitioner no specific order has been passed by the Court to put her in possession and as such, the petitioner is not entitled to claim possession of the suit property. 

When a party, who lost his property in

execution of a decree, seeks to recover the same by

reason of the appellate decree in his favour, he is not

initiating any original proceeding, but he is only

concerned with the working out of the appellate decree

in his favour. The application flows from the appellate

decree and is filed to implement or enforce the same. He

is entitled to the relief of restitution, because the

appellate decree enables him to obtain that relief, either

expressly or by necessary implication. He is recovering

the fruits of the appellate decree. Prima facie, therefore,

having regard to the history of the section, there is no

reason why such an application shall not be treated as

one for the execution of the appellate decree.”

In view of the above observations made by the Supreme

Court, the application filed by the petitioner/original defendant

no.3 Chandrakalabai before the court below shall be required to be treated as one for the execution of appellate decree.

9. Learned counsel appearing for the respondents vehemently

submits that so far as the appellate decree is concerned, there are

no directions for restoration of possession and as such, the

provisions under Section 144 of CPC are inapplicable. I find no

substance in this submission. In the case of Union of India

represented by the Commissioner of Income-tax Madras v.

Ummer Sait and others, reported in AIR 1969 Madras 212, the

Madras High Court held that the right to get restitution is a right created by the statute, flowing as a consequence of the decree being reversed by the appellate court. Whether there is any direction expressly authorising the successful party in the appeal to claim restitution or not, by the very fact of success in the appeal, the successful party acquires a right in terms of Section 144 of C.P. Code.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 WRIT PETITION NO. 269 OF 2018

CHANDRAKALABAI  BAPURAO SHIRSAT  Vs HABIB KHAN 


CORAM : V. K. JADHAV, J.

DATED : 04th December, 2019

Citation: 2020 (6) MHLJ 356


1. Heard finally with consent at admission stage.

2. The petitioner is original defendant no.3 in Regular Civil Suit

No. 123 of 1978. Respondent no.1 herein had instituted the said

suit for declaration and ownership and for recovery of possession.

By judgment and decree dated 02.05.1987, the learned Civil Judge,

Junior Division, Kaij decreed the suit and thereby declared

respondent no.1/original plaintiff as the owner of the suit land

Survey No. 290 situated at Waghebabulgaon, Taluka Kaij admeasuring

9 acres 30 guntha. The trial court has also declared the

sale deed dated 02.04.1974 in the name of the defendant executed

by one Purushottam Ramrao Kulkarni as benami sale deed and


further, in clause (C) of the operative part of the decree, directed

that the land be taken back from the possession of the Court and

the plaintiff be put in possession of the disputed land with mango

trees. Being aggrieved by the said judgment and decree passed by

the trial court in the aforesaid Regular Civil Suit, the petitioner

herein (original defendant no.3) and original defendant no.2

Bhanudas s/o Dhondiba Morale preferred Regular Civil Appeal No.

162 of 1987 before District Court, Ambajogai. Learned District

Judge, Ambajogai, by judgment and order dated 16.07.1991

allowed the appeal, quashed and set aside the judgment and decree

passed by the trial court in the aforesaid Regular Civil Suit No. 123

of 1978. Being aggrieved by the same, respondent no.1/original

plaintiff preferred Second Appeal No. 370 of 1991 and this Court

by judgment and order dated 23.02.2010, dismissed the said

Second Appeal. In terms of the judgment and decree passed by the

trial court in Regular Civil Suit No. 123 of 1978, particularly clause

(C) of the operative part of the decree, respondent Habib Khan

(original plaintiff) was put in possession of the disputed land with

mango trees. The petitioner/original defendant no.3 in the said

suit, in terms of the judgment and order passed by this Court in the

aforesaid Second Appeal No. 370 of 1991, and since the said


judgment and order passed by this Court attained finality, filed an

application for execution of the decree under Order XXI Rule 11 of

C.P.C. In fact, the said application for execution of decree is

wrongly mentioned as filed under Order XXI Rule 11 of CPC. The

same is required to be treated as the application filed under Section

144 (1) of C.P.C. The said application for execution of decree is

registered as Regular Darkhast No. 3 of 2011. The petitioner herein

filed applications Exhibits 43 and 45 praying therein for issuance of

the possession warrant and accordingly, notice came to be issued to

the judgment debtor i.e. respondent no.1 herein and he filed his

objection and say to Exhibit 43 vide Exhibit 49. Respondent

no.1/original plaintiff raised objection to the effect that in favour of

the petitioner no specific order has been passed by the Court to put

her in possession and as such, the petitioner is not entitled to claim

possession of the suit property. Learned Civil Judge, Junior

Division, Kaij, by order below Exhibit 1 in Regular Darkhast No. 3

of 2011 dated 04.08.2016, dismissed the said Darkhast with costs.

Hence this Writ Petition.

3. Learned counsel for the petitioner submits that Section 144

of C.P.C. speaks about restitution. In terms of the provisions of

Section 144 (1) of C.P.C., so far as a decree or order is valid 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

pass 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, place the parties in possession

which they would have occupied but for such decree. Learned

counsel submits that the petitioner has lost her possession due to

the decree passed by the trial court which was set aside in the first

appeal by the District Court and the said order has also been

confirmed in the Second Appeal by this Court. Consequently, even

if no order has been specifically passed by the appellate court to

put the petitioner in possession of the suit property, in terms of the

provisions of Section 144 (1) of C.P.C., the petitioner/original

defendant no.3 is entitled for restitution.

4. Learned counsel for respondent no.1/original plaintiff

submits that the executing court has rightly rejected Regular

Darkhast No. 3 of 2011. During pendency of the suit, a compromise

had taken place between the plaintiff and defendant no.1

Shahjanbi and in terms of the said compromise, defendant no.1


Shahjanbi was put in possession of the suit property. Learned

counsel submits that prior to institution of the suit, proceedings

came to be initiated under Section 145 of the Criminal Procedure

Code before the Executive Magistrate and in those proceedings, the

suit property was given in possession of the receiver. Learned

counsel submits that in terms of the said compromise, under the

panchanama drawn in the said proceedings under Section 145 of

the Criminal Procedure Code, the respondent Shahjanbi (original

defendant no.1) was put in possession of the suit property. Learned

counsel submits that it is not the case that in terms of clause (C) of

the operative part of judgment and decree passed by the trial court

dated 02.05.1987 in Regular Civil Suit No. 123 of 1978

respondent no.1/original plaintiff Habib Khan was put in

possession of the suit property and as such, on reversal of the said

decree in its entirety, the petitioner herein is entitled for

restitution. Learned counsel submits that the petitioner has not

approached the executing court with clean hands and she has

suppressed the material facts. There is no substance in this Writ

Petition and the same is thus liable to be dismissed.


5. On careful perusal of the judgment and decree passed by the

trial court, particularly clause (C) of the operative part, it appears

that after decreeing the suit of the plaintiff (respondent no.1 Habib

Khan) in terms of the prayers made in the suit, the trial court has

directed that the land be taken back from the possession of the

court and the plaintiff be put in possession of the disputed land

with mango trees. The learned Additional District Judge,

Ambajogai, by judgment and order dated 16.07.1987 allowed the

appeal and thereby quashed and set aside the said judgment and

decree passed by the trial court. So far as clause (C) of the

operative part of the judgment and decree passed by the trial court,

the learned Additional District Judge in para 19 of the judgment

has observed that though there is no application for appointment of

court receiver found on the record, however, learned Additional

District Judge found only one letter vide outward no. 260/1987

dated 19.05.1987 written by the Civil Judge, Junior Division, Kaij

to Shri S. N. Daund (court receiver) directing him to hand over

possession of the property to respondent Habib Khan/original

plaintiff. Though later the Additional District Judge has adversely

commented on the said directions given by the trial court, the fact

remains as it is that in terms of clause (C) of the judgment and

decree passed by the trial court and to comply with the further

directions given by the trial court through the said letter vide

outward no. 260 of 1987 dated 19.05.1987, the possession has

been handed over to respondent no.1 Habib Khan/original plaintiff.

6. In Second Appeal No. 370 of 1991 preferred by respondent

no.1/plaintiff Habib Khan, in para no. 17 of the Judgment, this

Court has observed that the suit property has been subsequently

purchased on 31.12.1979 by defendant Bhanudas and then 4 acres

to Chandrakalabai (present petitioner). This Court has observed

that it was after making inquiry with the Talathi regarding title to

the suit property and thus there is no reason to hesitate to hold that

the transactions of subsequent sales (Exhibits 89 and 96) are

absolutely in terms of the provisions of section 41 of the Transfer of

Property Act as the purchasers have taken care to verify the title,

verify actual possession and rights of the vendors to execute the

sale deed.

7. In the backdrop of these facts, Section 144 (1) of C.P.C.

which is relevant for the present discussion is reproduced herein

below:

“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.

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.”

8. In the case of Mahijibhai Mohanbhai Barot v. Patel

Manibhai Gokalbhai and others, reported in AIR 1965 SC 1477, in

paragraph no. 23 of the judgment, the Supreme Court has made

the following observations:

“23. With this background the Legislature in passing the

Code of Civil Procedure, 1908, introduced S. 144 therein.

The said section is more comprehensive than S. 583 of

the Code of 1882. Section 144 of the present Code does

not create any right of restitution. As stated by the

Judicial Committee in Jai Berham v. Kedar Nath Marwari,

49 Ind App 351 at p. 355; (AIR 1922 PC 269 at p. 271),

"It is the duty of the Court under S. 144 of the

Civil Procedure Code to 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. 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 section, to avoid the earlier conflict prescribes the

procedure, defines the powers of the Court and expressly

bars the maintainability of a suit in respect of a relief

obtainable under this section. The section does not either

expressly or by necessary implication change the nature

of the proceedings. Its object is limited. It seeks to avoid

the conflict and to make the scope of the restitution clear

and unambiguous. It does not say that an application for

restitution, which till the new Procedure Code was

enacted, was an application for execution, should be

treated as an original petition. Whether an application is

one for execution of a decree or is an original application

depends upon the nature of the application and the relief

asked for. When a party, who lost his property in

execution of a decree, seeks to recover the same by

reason of the appellate decree in his favour, he is not

initiating any original proceeding, but he is only

concerned with the working out of the appellate decree

in his favour. The application flows from the appellate

decree and is filed to implement or enforce the same. He

is entitled to the relief of restitution, because the

appellate decree enables him to obtain that relief, either

expressly or by necessary implication. He is recovering

the fruits of the appellate decree. Prima facie, therefore,

having regard to the history of the section, there is no

reason why such an application shall not be treated as

one for the execution of the appellate decree.”

In view of the above observations made by the Supreme

Court, the application filed by the petitioner/original defendant

no.3 Chandrakalabai before the court below shall be required to be treated as one for the execution of appellate decree.

9. Learned counsel appearing for the respondents vehemently

submits that so far as the appellate decree is concerned, there are

no directions for restoration of possession and as such, the

provisions under Section 144 of CPC are inapplicable. I find no

substance in this submission. In the case of Union of India

represented by the Commissioner of Income-tax Madras v.

Ummer Sait and others, reported in AIR 1969 Madras 212, the

Madras High Court held that the right to get restitution is a right

created by the statute, flowing as a consequence of the decree

being reversed by the appellate court. Whether there is any

direction expressly authorising the successful party in the appeal to

claim restitution or not, by the very fact of success in the appeal,

the successful party acquires a right in terms of Section 144 of C.P. Code. In paragraph no. 3 of the Judgment, the Madras High Court

has made the following observations:

“3. As far as the first contention is concerned, I have no

doubt whatever that the same is absolutely untenable.

The right to get restitution is a right created by the

statute, flowing as a consequence of the decree being

reversed by the appellate court. Whether there is any

direction expressly authorising the successful party in the

appeal to claim restitution or not, by the very fact of the

success in the appeal, the successful party acquires a right

in terms of Section 144 C. P. Code. Therefore, I reject the

first contention of Mr. Jayaraman.”

10. In the case of Mrs. Kavita Trehan and another v. Balsara

Hygiene Products Ltd., reported in AIR 1995 SC 441, in paragraph

nos. 13 and 15, the Supreme Court has made the following

observations:

“13. The Law of Restitution encompasses all claims

founded upon the principle of unjust enrichment.

'Restitutionary claims are to be found in equity as well as

at law'. Restitutionary law has many branches. The law of

quasi-contract is "that part of restitution which stems

from the common Indebitatus counts for money had and

received and for money paid, and from quantum meruit

and quantum vale bat claims." [See 'The Law of

Restitution" - Goff & Jones, 4th Edn. Page 3]. Halsburys

Law of England, 4th Edn. Page 434 states :

“Common Law. Any civilised 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. Such remedies in English law are

generically different from remedies in contract

or in tort, and are now recognised to fall within

a third category of the common law which has

been called quasi contract or restitution.”

For historical reasons, quasi contract has traditionally

been treated as part of, or together with, the law of

contract. Yet independently, equity has also developed

principles which are aimed at providing a remedy for

unjustifiable enrichment. It may be that today these two

strands are in the process of being woven into a single

topic in the law, which may be termed "restitution”.

Recently the House of Lords had occasion to examine some

of these principles in Woolwich Equitable Building Society

v. Inland Revenue Commissioners, [1993] A.C. 70.


14. ......

15. Section 144 CPC incorporates only a part of the

general law of restitution. It is not exhaustive. (See

Gangadhar v. Raghubar Dayal, AIR 1975 All 102 (FB)

and State Govt. of Andhra Pradesh v. M/s. Manickchand

Jeevraj & Co., Bombay , AIR 1973 Andhra Pra. 27).

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,...." 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 and general powers of restitution

inherent in every court..............”

In view of the above observations, even if the cases not

falling within the ambit of Section 144 of CPC, restitution can be

made under inherent powers.

11. In the case of South Eatern Coalfields Ltd. v. State of M.P.

and others, reported in AIR 2003 SC 4482, in paragraph no. 24, the

Supreme Court has made the following observations:


24. In our opinion, the principle of restitution takes

care of this submission. The word 'restitution' 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

(See : Zafar Khan and Ors. v. Board of Revenue, U.P., and

Ors., AIR 1985 SC 39). In law, the term 'restitution' is

used in three senses; (i) return or restoration of some

specific thing to its rightful owner or status; (ii)

compensation for benefits derived from a wrong done to

another; (iii) compensation or reparation for the loss

caused to another. (See Black's Law Dictionary, Seventh

Edition, p.1315). The Law of Contracts by John D.

Calamari & Joseph M. Perillo has been quoted by Black to

say that 'restitution' is an ambiguous term, sometimes

referring to the disgorging of something which has been

taken and at times referring to compensation for injury

done. "Often, the result in either meaning of the term

would be the same. ..... Unjust impoverishment as well as

unjust enrichment is a ground for restitution. If the

defendant is guilty of a non-tortuous misrepresentation,

the measure of recovery is not rigid but, as in other cases

of restitution, such factors as relative fault, the agreed

upon risks, and the fairness of alternative risk allocations

not agreed upon and not attributable to the fault of either

party need to be weighed." The principle of restitution

has been statutorily recognized in S.144 of the Code of

Civil Procedure, 1908. Section 144 of the C.P.C. speaks

not only of a decree being varied, reversed, set aside or

modified but also includes an order on 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. The

interim order passed by the Court merges into a final

decision. The validity of an interim order, passed in

favour of a party, stands reversed in the event of final

decision going against the party successful at the interim

stage. Unless otherwise ordered by the Court, the

successful party at the end would be justified with all

expediency in demanding compensation and being placed

in the same situation in which it would have been if the

interim order would not have been passed against it. The

successful party can demand (a) the delivery of benefit

earned by the opposite party under the interim order of

the court, or (b) to make restitution for what it has lost;

and it is the duty of the court to do so unless it feels that

in the facts and on the circumstances of the case, the

restitution would far from meeting the ends of justice,

would rather defeat the same. Undoing the effect of an

interim order by resorting to principles of restitution is an

obligation of the party, who has gained by the interim

order of the Court, so as to wipe out the effect of the

interim order passed which, in view of the reasoning

adopted by the court at the stage of final decision, the


court earlier would not or ought not to have passed.

There is nothing, wrong in an effort being made to

restore the parties to the same position in which they

would have been if the interim order would not have

existed.”

In terms of the above observations, it is clear that Section

144 of CPC is not fountain source of restitution; it is rather a

statutory recognition of a pre-existing rule of justice, equity and fair

play. Therefore, it is often held that even away from Section 144,

the Court has inherent jurisdiction to order restitution so as to do

complete justice between the parties.

12. So far as the point of limitation as raised by learned counsel

for the respondents is concerned, in terms of Article 136 of the

Limitation Act, 1963, the period of limitation for execution of any

decree of order of Civil Court is twelve years and the time from

which the period begins to run is when the decree or order

becomes enforceable. In the instant case, the Second Appeal

preferred by the respondents came to be dismissed by the judgment

and order dated 23.02.2010 and as such, execution application

filed by the petitioner herein is well within limitation in terms of

Article 136 of the Limitation Act, 1963.

13. I also find no substance in the submission made on behalf of

respondent no.1/plaintiff that in terms of the compromise effected

between respondent no.1/original plaintiff and defendant no.1

Shahjanbi, said Shahjanbi was put in possession of the suit

property. Though I find the said compromise in the record and

proceedings with a verification thereon by the court, however, no

further order has been passed in connection with the said

compromise. On the other hand, the trial court vide clause (C) of

the operative part of the order dated 02.05.1987 gave directions to

put the plaintiff in possession. If at all the property was in

possession of the receiver appointed in the proceedings under

Section 145 of the Criminal Procedure Code, however, in terms of

the directions in clause (C) of the operative part of the order dated

02.05.1987, respondent no.1 Habib Khan/original plaintiff was put

in possession of the suit property. Furthermore, in Second Appeal,

this Court has considered the submissions made on behalf of the

purchasers, the original defendants Bhanudas and Chandrakalabai

(present petitioner) and in unequivocal words made observations

to the effect that they are bonafide purchasers.

14. In view of the above discussion and in terms of the ratio laid

down by the Supreme Court in the aforesaid cases, the impugned


order is not sustainable and the same is liable to be quashed and

set aside. It is incumbent upon the executing court to pass

appropriate orders in terms of Section 144 of CPC for restitution.

Hence, I proceed to pass the following order:

ORDER

I. The Writ Petition is hereby partly allowed.

II. The impugned order dated 04.08.2016 below

exhibit 1 in Regular Darkhast No. 3 of 2011 passed

by Civil Judge, Junior Division, Kaij, District Beed is

hereby quashed and set aside.

III. Regular Darkhast No. 3 of 2011 be restored to its

original position.

IV. The executing court shall pass appropriate orders in

terms of Section 144 of CPC to restore possession of

the petitioner to the extent of 4 acres out of the land

Survey No. 290 situated at Waghebabulgaon, Taluka

Kaij, District Beed as detailed in Regular Darkhast

No. 3 of 2011.

V. The Writ Petition is accordingly disposed off.

15. Learned counsel for the respondents at this stage submits

that the effect of this order may be stayed for a period of four

weeks so as to enable respondent no.1/original plaintiff to file

Special Leave Petition before the Supreme Court. However, I do not

find any substance in the submissions made on behalf of

respondent Habib Khan. He had finally lost the litigation way back

in the year 2010 when this Court had decided Second Appeal No.

370 of 1991 by Judgment and order dated 23.02.2010. Even then

respondent/original plaintiff is in possession of the suit land on the

basis of the judgment and decree passed by the trial court in

Regular Civil Suit No. 123 of 1978, particularly clause (C) of the

operative part of the decree. The request is refused.

( V. K. JADHAV, J.)


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