Whether S 144 of CPC is applicable if there is no variation or reversal of decree or order in appeal or revision?

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.

12. 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.

13. In these circumstances, the provisions of Section 144, Code of Civil Procedure were not attracted there being no variation or reversal of a decree or order as contemplated by Section 144.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 880 of 2019 (Arising out of SLP (C) No. 2378 of 2006)

Decided On: 21.01.2019

 Murti Bhawani Mata Mandir  Vs.  Ramesh and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Hemant Gupta, JJ.

Citation: AIR 2019 SC 679

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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

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Whether decree can be reversed on ground that appellate court has failed to frame points?

 This Court in the case of Vatsalabai wd/o

Vishwanath Nakhate & Others Vs. Madhaorao Laxmanrao

Thakare & Another, 2005(1) Mh.L.J. 980 has held that failure

of the first Appellate Court to formulate the questions, as

required under Order XLI, Rule 31 of CPC, would in deed

constitute a substantial question of law. However, when the

appeal is heard on merits and the High Court is required to

examine the question of reversal of the decree, on any such

grounds, the Court has to examine as to whether, the failure of

the first Appellate Court to formulate the question, as required

under Order XLI, Rule 31 of CPC, has resulted into miscarriage

of justice. This Court has further found that in a situation of the

present nature, the provisions of Section 99 of CPC cannot be

lost sight of. Section 99 of CPC inter alia provides that no decree

shall be reversed or substantially varied, nor shall any case be

remanded in appeal on account of any error, not affecting the

merits of the case or the jurisdiction of the Court. Now the

question whether the failure to frame such points or proper

points, has resulted into any miscarriage of justice or has

affected the merits of the case, would depend upon facts and

circumstances of each case. In the present case, I do not find

that there is any miscarriage of justice, which has resulted,

affecting the merits of the case, within the meaning of Section 99

of CPC.

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 127 OF 2017

Shablo Govind Gaude  Vs  Kashinath Govind Gaude 

Coram : C.V. BHADANG, J.

Date : 14 th JUNE 2018

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Whether higher courts can order restitution after reversal of decree?

The limited question is whether this Court can grant restitution. Prior to Amendment Act, 1976, an application for restitution Under Section 144 in all cases had to be made to the Court of first instance. Ever since the amendment the substituted expression 'the Court which passed the decree or order' would as per Clause (a) of the explanation, mean the Court of first instance because the expression 'the Court which passed the decree or order' has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e. the Court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation Clause (a) of the explanation would be attracted and an application for restitution will have to be made to the Court of first instance, i.e. the Court of Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a Court does not exist. Therefore, it would not be proper for this Court to direct restitution. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1058 of 1970

Decided On: 30.04.1980

State Bank of Saurashtra Vs.Chitranjan Rangnath Raja and Anr.

Hon'ble Judges/Coram:
A.C. Gupta, D.A. Desai and E.S. Venkataramiah, JJ.
Citation:(1980) 4 SCC 516.

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Whether first appellate court can reverse decree of trial court even in absence of any cross-appeal or cross-objection by plaintiff?

The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of theSpecific Relief Act, 1963 the Court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross objection.

We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection.

The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder:

ORDER 41 Appeals from Original Decrees "33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.

4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."

Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.

Supreme Court of India

Banarsi And Ors vs Ram Phal on 17 February, 2003

Bench: R.C. Lahoti, Brijesh Kumar

Citation: AIR2003SC1989,(2003)9SCC606,

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