T PANCHALAIAH Vs. JAJADANKI SAROJA

JUDGEMENT

(1.) This Civil Revision Petition is filed under Article 227 of Constitution of India assailing the decretal order, dated 16.12.2005, passed by the Court of III Additional Junior Civil Judge, Nellore in E.A.No.363 of 2002 in E.P.No.69 of 1993 arising out of an ex parte decree for declaration of title and recovery of possession passed by the said Court in O.S.No.676 of 1990. The petitioner herein is the decreeholder and the first respondent in E.A.No.363 of 2002 whereas one Jaladanki Saroja is a third party to the said suit, who filed E.A.No.363 of 2002. After her death, her legal representatives, namely, the husband and two daughters were brought on record before the lower Court, who are respondents 2 to 4 herein.

(2.) The brief fact of the matter is as follows. The petitioner was as signed/allotted land admeasuring Acs.331/2 ankanams bearing plot No.13 in Block 'B' in survey No.78/2 situated at Vedayapalem, Nellore, on payment of market value under proceedings, dated 22.06.1978, which was marked as Ex.X. 1. He was allegedly put in possession of vacant land. When there was dispute about his title, he filed the suit being O.S.No.676 of 1990 for declaration of title and recovery of possession based on the assignment made in his favour. The Suit was decreed on 26.07.1991. by the Court of III Additional Junior Civil Judge, Nellore, against respondents 5 and 6 herein, who were defendants 1 and 2 in the suit. The petitioner, therefore, filed E.P.No.69 of 1993 for execution of the decree. At that stage, Jaladanki Saroja, filed E.A.No.96 of 1993 under Order XXI Rule 97 of Code of Civil Procedure, 1908 (CPC). She alleged that she was assigned plot No.3 in survey No.78/4, that she was in possession of the property and that she obtained ex parte decree in O.S.No.538 of 1989, dated 20.09.1992 on the file of the Court of the Principal Junior Civil Judge, Nellore, against the petitioner herein. The said execution application was dismissed on 30.06.1995 on the ground that the property claimed by Saroja is different from the suit schedule property in O.S.No.676 of 1990. Saroja filed C.R.P.No.2452 of 1995 against E.A.No.96 of 1993, dated 30.06.1995. This Court dismissed the same on 19.02.2002. The petitioner herein then executed decree in O.S.No.676 of 1990 and took possession of the site as well as a residential house, which was allegedly the same as suit schedule in O.S.No.676 of 1990. Saroja, however, disputed this. Throughout her contention was that the land, which was assigned to her and the house, which was constructed, are in survey No.78/4 bearing plot No.3, which is different from the suit schedule property in the suit filed by the petitioner. Taking such a plea, she filed E.A.No.363 of 2002 under Section 144 of CPC on the file of the Court of III Additional Junior Civil Judge, Nellore. She prayed for restoration of the property from which she was dispossessed by the Court bailiff in purported execution of the decree in O.S.No.676 of 1990. E.A.No.363 of 2002 was allowed on 21.10.2002. The petitioner then filed C.M.A.No.69 of 2002 on the file of the III Additional District Judge, Nellore. By order, dated 24.04.2002, the appellate Judge allowed the matter arid remanded to the lower Court. After remand, the lower Court by order, dated 16.12.2005 allowed E.A.No.363 of 2002. Feeling aggrieved by which, the petitioner filed C.M.A., on the file of the District Court, which was returned as not maintainable. Therefore, the present Civil Revision Petition is filed against the order, dated 16.12.2005. Be it also noted, before the lower Court, the contesting respondents examined P.W.I to P.W.4 and marked Exs.A.l to A.27. The petitioner examined himself as R.W.I, besides examining R.W.2 and R.W.3 and marked Exs.B.1 to B.4. C.W.I to C.W.4 were also examined and Exs.X.l to X.25 were also marked. X. 18 is the delivery warrant and Ex.X. 19 is the report of the Court Amin of delivery receipt handing over possession of property in possession of Saroja to the petitioner herein.

(3.) Learned counsel for petitioner, Sri M.V.S.Suresh Kumar, submits that the application filed by Saroja under Section 144 of CPC for restitution is not maintainable. As she was not a party to the suit filed by the petitioner nor the said decree was reversed in the appeal filed by her. Secondly, he contends that the order in E.A.No.96 of 1993, dated 30.06.1995, marked as Ex.Bl operates res judicata. It is his third submission that in the absence of any finding that the property claimed by Saroja is the same as that of suit schedule property in O.S.No.676 of 1990, the lower Court could not have allowed the application. Lastly, he contends that Saroja, who filed the application before the lower Court died before the commencement of the enquiry by the Court. Though her legal representatives were brought on record, none of them came to witness box to depose in favour of the allegation that the property, which was delivered to the petitioner under Ex.X.19 is different from the suit schedule property. He adds further that P.W.4, who was examined on behalf of respondents 2 to 4 is general power of attorneyholder of the second respondent and his evidence cannot be treated as evidence of the respondents. He placed reliance on the decision of the Supreme Court in Janki Vashdeo Bhojwani v Indusind Bank Limited. (2005) 2 SCC 217 = 2005 (3) ALD 43 (SC) Learned counsel for respondents 2 to 4, Sri S.R.Sanku submits that Section 144 of CPC is not exhaustive in relation to Law of Restitution and even under Section 151 of CPC, it is competent to the Court to order restitution to avoid miscarriage of justice and to. avoid prejudice caused to third parties by the orders passed by the Court. He relied on Kavita Trehan v Balsara Hygiene Products, (1994) 5 SCC 380 South Eastern Coalfields Limited v State of M.P., (2003) 8 SCC 648 Zafar Khan v Board of Revenue, U.P., 1984 (Supp) SCC 505 Jotindra Nath v Jugal Chandra, AIR 1966 CAL 637 Payre Chand v Ashrasunnissa Begum, AIR 1975 AP 228 Nextly, he relies on Ex.B.2, which is the copy of the order of this Court in C.R.P.No.2452 of 1995 and submits that the earlier proceedings are not res judicata as this Court earlier observed that property which does not form part of suit schedule cannot be delivered to the decreeholder. Nextly, he points out that Saroja filed a suit being O.S.No.538 of 1989 claiming possession in respect of property in survey No.78/4, whereas the petitioner claimed property in survey No.78/2, and therefore, the burden lied on the petitioner ,to show by disclosing proper boundaries of the suit schedule property in O.S.No.676 of 1990. The petitioner did not even give the boundaries of the property whereas the respondents produced evidence to show that Amin delivered the property in Survey No.78/4, which is also admitted by the petitioner as P.W. 1. Restitution Section 144 of CPC lays down that when a decree or order is varied or reversed by appellate/revisional Court, the decreeing Court may order restitution placing the parties in the same position, which they occupied before the decree. There cannot be any doubt that on a true interpretation, Section 144 deals one and only situation where the decree of the original Court is reversed by the appellte/revisional Court. Therefore, in matters of restitution not falling within the scope of Section 144 of CPC, would it be correct to say that the civil Court has no such power of restitution? There is abundant authority that there can be number of situations where the Court can exercise its inherent power under Section 151 of CPC to prevent miscarriage of justice by reason of its orders. Such power is to be exercised by the civil Court in discharge of its duty, which is explained by the well known maxim actus curiae neminem gravabit. The power is exercised by civil Court to order restitution to ensure that no person - whether such person is party to the suit/application, or not; gets undue advantage by its orders, is no party grossly prejudiced by its proceedings/orders.