The Supreme Court has observed that the provisions of Section 144 of the Code of Civil Procedure will not be attracted when there is no variation or reversal of a decree or order .
In this case [Bansidhar Sharma(Since Deceased) Vs The State Of Rajasthan], the suit for possession was dismissed by the Trial Court. The High Court, vide an interim order gave the appellant the possession of the subject property. The appeal was ultimately dismissed. Thereafter, a petition under Section 151 read with Section 144 CPC was filed before the High Court to restore possession of the subject property . The High Court allowed the application with a liberty to the defendant to take possession of the suit property and to take police or other aid, if necessary, in taking possession of the subject property in question .
In appeal, the bench comprising Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi explained the scope of Section 144 as follows:
It clearly transpires that Section 144 applies to a situation where a decree or 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. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them.
In this regard, it referred to a recent judgment in Murti Bhawani Mata Mandir Vs. Rajesh.
The court also noted that there was no decree or order of the trial Court by virtue of which the appellant was given possession of the subject property. The possession was handed over to the appellant of the subject property under the interim order passed by the High Court pending first appeal of which a reference has been made and after the appeal came to be dismissed, its logical consequence was noticed by the High Court in its judgment dated 20th April, 2018 directing the appellant to hand over possession of the subject property to the defendants obviously for the reason that on dismissal of the first appeal preferred by the appellant, he was under an obligation to restore back peaceful possession to the respondents on vacation of the interim orders, the court noted. While dismissing the appeal, the bench said:
"The submission of the learned counsel for the appellant that execution application under Section 144 CPC would lie only before the Court of first instance, which in the instant case is Additional District and Session Judge, No. 1, Jaipur City and not the High Court and the impugned judgment is without jurisdiction, is without substance for the reason that there was no decree or order of the trial Court which is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. Indisputedly, the possession was handed over to the appellant-plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondents-defendants. In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC."
Click here to Read/Download Judgment