S.M. DESHMUKH Vs. GANESH KRISHNAJI KHARE

JUDGEMENT

(1.) THIS revision application by the original defendant tenant arises out of restitution proceedings and is referred to the Division bench as there are conflicting decisions of this Court and other High Courts on the question whether an application for restitution of property taken possession of in execution of an exparte under Order IX, Rule 13 of the Code of Civil Procedure fails within Section 144 of the said Code. The short facts areas follows: -

(2.) IN an ejectment suit field by the Respondent Landlord against the Petitioner - Tenant in the Small Cause Court at Bombay to recover possession of a room in a buildings situate at Kurla (hereinafter referred to as the premises) the landlord obtained an ex parte decree on February 4,1971 and in execution of the decree obtained possession of the premises on February 16 1971. On 17th February the tenant applied to the trial Court to set aside the ex parte decree on the ground that the summons was not served on him and also prayed for restoring possession of the premises. ON March 18, 1971 the trial Court set aside the ex parte decree be declined to restore possession on equitable grounds and gave directions for expediting the hearing of the suit. The petitioners thereafter filed revision Application No.161 of 1971 before the Appellate Bench of the small Cause Court against the said order. The Bench rejected the application holding that though the trial Court had jurisdiction under Section 151 but not under Section 144 of the Code of Civil Procedure to grant restoration, having regard to the equities between the parties, the case did not call for interference with the order of the trial Court. From that order the tenant has preferred this revision application. Section 144 reads as follows: - '(1) Where and in so far as a decree or an order is varied or reversed, the Court of first instance shall on the application of any party entitled to any benefit by way of restitution or otherwise. cause such restitution to be made. as will so far as may be place the parties in the position which they would have occupied but for such decree or order or such -p[art thereof as has been varied or reversed; and for this purpose the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining and restitution or other relief which could be obtained by application under sub -section (1)'. The Section provides a summary remedy and bans a suit for obtaining restitution or other relief provided for under sub -section (1)Now for ascertaining the scope of section 144, the crucial words are 'varied or reversed' and 'the Court of first instance', and depending upon different interpretations placed upon the said words in the context of the object and legislative history of Section 144 a narrow or wide view of its scope is taken in different decisions of this Court and other High Courts. Thus three views are taken viz., (i) Section 144 applied to cases only where a decree or order is varied or reversed in the same proceeding by a superior Court: (ii) It applies also in cases where the decree or order is varied or reversed in a proceeding in the same suit by the same Court, for example, where an ex parte decree is set aside under Order 9. Rule 13 of the Code of Civil Procedure: and (iii) It extends further to cases where the decree order is varied or reversed in a separate suit or proceeding between the same parties by a Court of competent jurisdiction. In the present case we are concerned with the second category of cases. The doctrine of restitution is based on the principle stated by Lord Cairns in Alexander Rodger v. Comptoir D'Escompte De Paris (1871) 40 LJ PC 1: LR 3 PC 465 as follows: 'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors'. Supreme Court of India has reiterated this principle in Bhagwant Singh v. Sri Krishen Das. : [1953]4SCR559 and Binayak Swain v. Ramesh Chandra Panigrahi : [1966]3SCR24 .

(3.) THERE us no dispute before us that the scope of Section 144 has been widened by deleting the words 'in appeal' and a reversal or variation of a decree by a superior Court even in revision or reference will fulfil that part of Section 144(1). It may be noticed that Order 46. rules 5 of the Code of Civil Procedure empowers of the Court on a reference to set aside a decree. It is therefore, clear enough that the word 'reverse' in Section 144 is used in its ordinary sense of annulling or setting aside.