BAIKUNTHA NATH CHATTORAJ Vs. PROSANNAMOYI DEBI

JUDGEMENT

(1.) We do not think that this is a case in which restitution can properly be ordered.

(2.) It appears that the appellant applied for letters of administration to the estate of one Mandakini Debi, and the respondent set up a will of the deceased. The movable properties in dispute were at that time in the possession of the respondent. The Court appointed a commissioner to make an inventory of the properties, and in the course of the proceedings she set up a title to many of the properties as belonging to herself. An inventory was made by the commissioner and the properties were locked up in a room under seal, the keys remaining with the commissioner. Letters of administration were granted to the appellant and probate of the will was refused to the respondent. On appeal by the respondent to the High Court the decision of the District Judge was reversed and probate of the will was ordered to be granted to the respondent. She then applied for removal of the seals and for delivery of the properties, belonging to the deceased under the terms of the will to her, and the District Judge made an order accordingly. The order of the High Court granting probate was, however, reversed by His Majesty in Council. The letters of administration to the appellant were thereupon restored, and the appellant applied for restitution of the properties to him. That has been disallowed by the Court below, and the appellant has preferred this appeal.

(3.) Now Section 144 of the Civil Procedure Code provides that, where and in so far a decree 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 such part thereof as has been varied or reversed. In the case of Jai Berhma V/s. Kedar Nath Marwari A.I.R. 1922 P.C. 269 the Judicial Committee observed : - "It is the duty of the Court, under Section 144 of the Civil Procedure Code, to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Code to act rightly and fairly according to the circumstances towards all parties involved. As was said by Cairns, L.C. in Rodger V/s. Comptoir D Escompte de Paris [1871] L.R. 3 P.C. 465 : One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.