THAKUR RAM LAKSHMAN JANKI VIRAJMAN MANDIR SARBARAKAR RAM NATH AND ANOTHER Vs. V. ADDL. DISTRICT JUDGE, FATEHPUR AND OTHERS

JUDGEMENT

(1.) WHETHER the court on an application for restitution can pass an order in terms of compromise, alleged to have been filed by the parties before the decision or the proceedings for restitution have to be decided independent of the compromise application, is the short question for determination in the present petition filed by the plaintiffs, the petitioners who have obtained an ex parte order on 19-9-85 and got actual possession in respect of the accommodation on 23-4-86 in a small cause court suit for arrears of rent and damages and mesne profits, filed by them against respondent Nos. 2 and 3, and the suit was restored on 26-10-87 on payment of Rs. 300/- as cost. Thereafter it became necessary on the application of respondent Nos. 2 and 3 to deliver back the possession to them, which was obtained by the petitioners in execution of the decree dated 19-9-85. Under these circumstances, the application for execution moved by respondent Nos. 2 and 3 under S.144 (one forty four) of the Code of Civil Procedure, 1908, for short the Code) came up for consideration before respondent No. 1.

(2.) IT was urged by the learned Counsel for the petitioners that the parties during the pendency of the application had filed a compromise application, a certified copy of which has been filed as Annexure 1 to the petition, and as the compromise application was filed before respondent No. 1, and the proceedings for restitution were pending that the provisions of O.23, R.3 of the Code were so comprehensive that it applies to any application or proceedings, Hence the restitution application could not have been disposed of by the impugned order without taking into account the validity and legality of the compromise filed by the parties.

(3.) THE word restitution itself means restoring to a party on the reversal, variance or revision of a decree or order either in appeal, revision or a review petition, as has been lost to him in execution of the decree or in some effect of the earlier decree or order which was passed in favour of the other party. In such matters it is not the right or title of a party that has to be looked into, but only the deprivation of a party from benefits of possession etc. under an order or decree which has been reversed or varied, that has to be looked into. See Zafar Khan v. Board of Revenue, 1984 Suppl SCC 505 : (AIR 1985 SC 39).