MANGTI Vs. CHETU

JUDGEMENT

(1.) The decree which was reversed in appeal was passed by the Assistant Collector and for purposes of restitution he is undoubtedly the court of first instance and bound to cause restitution to be made and place the parties in the position which they had occupied prior to the passing of the decree as contemplated in sec. 144, C. P. C. The jurisdiction of the court of first instance is not ousted by the fact that the value of the subject matter of the restitution exceeds the limits of its pecuniary jurisdiction, nor by the fact that after its decree has been set aside, the case has been transferred for rehearing to another court. Rupchand Sogani Vakil, for Opposite Party This review application has been filed against our decision dated 5th June, 1956.

(2.) The main ground set out in the application for review is that this court committed an error of law in directing the S.D.O. to hear and dispose of the application for restitution which in fact was not pending before him as the whole of the case in which the aforesaid application was filed had since been transferred to a civil court for disposal under orders of the Additional Commissioner. It was contended that the learned Bench not only over looked (his important fact but also acted illegally in holding that for purposes of disposing of the application the court of the Sub -Divisional Officer was the court of first instance within the meaning of sec. 144 C. P. C. It was urged that this error of law being patent on the face of it, or it constituted a sufficient ground under O. 47, r. 1, C P. C to justify a review of the impugned order. We do not find any substance in this contention. The fundamental principle underlying sec. 144, C. P. C. is that it is the first and the foremost duty of the court Which passed the decree to see that its decree which was set aside in appeal does not injury on the suitors and the party who received the benefit of that erroneous judgment is obliged to make restitution to the other party for what he had lost as a result of that erroneous judgment. In the case before us, the decree which was reversed in appeal was passed by the Assistant Collector and for purposes of restitution he is undoubtedly the court of first instance and bound to cause restitution to be made and place the parties in the position which they had occupied prior to the passing of the decree as contemplated in sec. 144, C.P.C. The jurisdiction of the court of first ins -tance is not ousted by the fact that the value of the subject matter of the restitution exceeds the limits of its pecuniary jurisdiction, nor by the fact that after its decree has been set aside, the case has been transferred for rehearing to another court. (Chitley on C.P.C. page 1327 V Edition) AIR Patna 1925 followed in AIR Travancor Cochin page 391 (F. B.) also lays down that the jurisdiction to order restitution is inherent in the court and it flows not from any power which it may have to carry into effect the decree or order of the court, but from the recognition of the duty which it owes to the suitors to take care that no injury is done to them by its acts. We are, therefore, of the opinion that there is no ground justifying a review of the order given by us. Even if for the sake of argument a position which we do not accept at all it is considered for a moment that the view in the matter taken by us is erroneous, the application in review is untenable. An erroneous view of law on the point or the wrong application of law or failure to apply the proper law cannot be considered a mistake or error apparent on the face of record as held in AIR 1955. Himachal Pradesh 25, A.I.R. 1153, Hyderabad 239, AIR 1955, Ajmer 2(2) A I. R., 1953, Patna 1024. In I.L.R. 1953, Rajasthan, page 790 the High Court has gone a step further by holding that in order to attract the application of O.47, r.1, C.P.C. the error of law must be such that it must not require a research and must not be one relating to which it may be possible to hold more opinions than one. In this view of the matter, We reject this review petition.