'Restitution' Under Section 144 Attracts Only When There Is Variation Or Reversal Of Decree/Order: SC [Read Judgment]
"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."
While allowing an appeal against Madhya Pradesh High Court order, the Supreme Court has explained the situations in which Section 144 of the Code of Civil Procedure (application for restitution) can be applied.
In this case, a suit for permanent injunction 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. This dismissal was later confirmed by the high court.
Thereafter, the defendant filed an application under Section 144 CPC for the restoration of possession of the disputed land and for awarding mesne profits, before the judge, Civil Court. The executing court dismissed the application. The appellate court allowed his appeal and remanded the application before the executing court. The high court affirmed the appellate court order. The defendant approached the apex court against the high court order.
Before the apex court, it was contended that even if it were to be assumed that the plaintiff had taken possession of the disputed land during the pendency of the suit, an application under Section 144 would not lie. The other side contended that since the plaintiff had taken possession of the suit land after the order of injunction was passed at the interlocutory stage, once the suit for injunction was dismissed, it was open to the defendant to apply for restitution under Section 144 CPC.
The bench comprising Justice Dhananjaya Y Chandrachud and Justice Hemant Gupta noticed the CPC provisions and observed: "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."
The bench further noticed that, in this case, there was no decree or order of the trial court by virtue of which the plaintiff was given possession of the property, nor did any decree or order mandate that the plaintiff hand over possession to the defendant. The court, therefore, held that the provisions of Section 144 CPC would not be attracted there being no variation or reversal of a decree or order as contemplated by the Section. Setting aside the appellate court's remand order, the court said the executing court had rightly declined to entertain the defendant's application under Section 144, CPC.
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