MEHTA BROTHER Vs. BANK OF INDIA

JUDGEMENT

(1.) THE challenge by means of the present of first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned order dated 18.12.1999, by which, application of the respondent/plaintiff for restitution under Section 144 CPC has been allowed. Before proceeding further, I must note that in terms of Section 141 of CPC, the procedure provided in the Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction, meaning thereby, the issue with regard to restitution to be granted under a final judgment and decree will equally apply to the interim orders of a court.

(2.) THE facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs. 51,440.16 along with interest at the contractual rate of 21.5% per annum which the counsel for the appellants states, was originally a simple money suit but was amended subsequently on an application of the respondent/plaintiff as one under Order 34 CPC i.e., the money suit became a suit on the basis of a mortgaged property. In this suit, an application was filed by the present appellants/defendants for return of the title deeds and certain FDRs against deposit of the amount in the court and which at that stage, was calculated at Rs. 70,000.00. The trial court dismissed the application however, in revision against that order, this court, vide its order dated 31.8.1989 directed the respondent/plaintiff/bank to return the title deeds and the fixed deposit receipts on the appellants/defendants depositing an amount of Rs. 76,000.00. The order of this court dated 31.8.1989 was challenged by the respondent/plaintiff in the Supreme Court and the Supreme Court vide its order dated 9.8.1995 allowed the appeal and set aside the order of this court dated 31.8.1989 and directed status quo ante, meaning thereby, the title deeds and the fixed deposit receipts were to be returned to the respondent/plaintiff.

(3.) LEARNED counsel for the appellants raised two main arguments. The first argument was that since the suit in the meanwhile has been decreed, this application for restitution is for an interim order and cannot be allowed. The second argument was that the order of restitution under Section 144 CPC could have been passed only by this court which had passed the order dated 31.8.1989 and not the court of first instance/trial court before which the suit was filed and was decreed. Learned counsel for the appellant relies upon The State Bank of Saurashtra v. Chitranjan Rangnath Raja & others (1980) 4 SCC 516 and more particularly paras 20 and 21 which read as under :-