TAILOR SATHAR KHAN Vs. SHAIK AHAMMED SAHEB

JUDGEMENT

(1.) This Revision Petition arises out of the order granting restitution consequent upon setting aside the exparte decree. The Trial Court on setting aside the exparte decree granted restitution. The lower appellate court reversed the order on the ground that section 144 C.P.C. is not applicable to the situation of setting aside the exparte decree.

(2.) The learned counsel for the petitioner contends that the restitution can be granted pursuant to setting aside the exparte decree and the amended section 144 is wide enough to cover the situation on setting aside the exparte decree. The learned counsel for the respondent seeking to sustain the order of the lower Appellate court contended that section 144 C.P.C. is applicable when the decree is reversed or varied and the order setting aside the exparte decree does not amount to variation or reversal.

(3.) The basic principle underlying the restitution is "actus curaie nomiinnem gravabit" which means the act of court should not result in harm to a litigant. The essential postulate of section 144 C.P.C. is status quo and restoration of anterior position of which the party is deprived of due to wrong order or approach. The innovation of section 144 arises when the party deprived of his right seeks relief as sequel to an order reversing or varying the earlier order. Sec. 144 enables the party to relegate to the original position blotting out the changed situation pursuant to the wrong order. The party wronged is retrieved and restored to the position prevailing at the earlier stage but for the passing of the initial order.