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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