TEJ SINGH Vs. GOMATI DEVI AND ORS.

JUDGEMENT

(1.) This Special Appeal arises out of the order passed by learned Single Judge on 13.02.2013, by which he had dismissed the contempt petition on the ground that there is no order-sheet of the court nor any appearance of the counsel for respondent in the order and, therefore, the facts narrated to the counsel appearing for the petitioner in contempt petition appear to be false. A Civil First Appeal No. 59/1993 is pending against the decree of the civil court by which the suit for cancellation of sale-deed was dismissed. It was alleged that during the pendency of the appeal, the plaintiff had demolished the partition wall of the terrace which divided the property. An application was filed by the respondent (defendant) in the suit for restoration of the boundary wall on which learned Single Judge passed an order as follows:

(2.) We are unable to appreciate as to how could an order of restitution of partition wall, which was alleged to have been demolished by the plaintiff, who had lost the suit for cancellation of the sale-deed, be directed to be restored in a pending appeal. In such a case, the only remedy open to the defendant was to file a separate suit.

(3.) We may observe here that the suit was not for injunction and that the protection of the partition wall was not the subject matter of the suit and since the defendant has an independent right for seeking injunction, he could not have claimed restitution of the property, which was not the subject of the suit, in an appeal, which is a continuation of the suit. The partition wall was not demolished in violation of any order passed by the Court. The powers of restitution under Section 144(1) of the Code of Civil Procedure are available where any decree or order is varied or reversed in any appeal or revision or in any other proceedings or is set aside or modified in any suit instituted for that purpose, to restore the parties, on an application for restitution,. for such purpose. In such cases in view of Neelathupare Kummi Seethi Koya Phangal (dead) by LR s vs. Montharapalla Padippua Attakoya, 1994 AIR(SC) 1591, the powers of restitution should ordinarily be exercised by the Court of first instance. The Court of first instance would, therefore, mean the Court, which passed the decree or order. Transferee executing Court was not held to be a Court which had passed the decree or order. The High Court hearing an appeal from a decree, by which the suit for cancellation of sale deed was dismissed, cannot be treated to be the Court of first instance, to pass an order for restitution. Such powers in view of specific provisions in Section 151 of Code of Civil Procedure are not available under Section 151 of the Code of Civil Procedure, nor the extraordinary powers under Article 226 of the Constitution of India are ordinarily available to High Court in Civil Appeal, to pass orders of restitution.