The Apex Court held that a court of first instance may order for restitution only when a decree or an order is varied, reversed or set aside or modified. Such court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed
The said ratio was delivered in the matter of Murti Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal (D) Through LR Kailash Vs.Ramesh & Ors., Civil Appeal No. 880 OF 2019 (Arising out of SLP(C) No. 2378 of 2006) decided on 21.01.2019.
A suit for permanent injunction was filed by the Plaintiff against the Respondents restraining them from interfering with the possession of the plaintiff over the subject property. The suit was dismissed by the Trial court on the ground that the plaintiff had failed to prove possession over the land in dispute. Both the first appeal as well as the second appeal were also dismissed. After the disposal of the second appeal, one of the Respondents filed an application under Section 144 of CPC for the restoration of possession of the subject property and for awarding mesne profits before the executing court.
The said application for restitution was dismissed by the executing court. The appeal filed by the first respondent was allowed and the case was remanded back to the executing court. The appellant filed a second appeal before the High Court which was dismissed in limine by the impugned order on the ground that no substantial question of law arose.
It was the case of the appellant that the provisions of Section 144 of the CPC were not attracted as the appellant was not placed in possession by the court under any decree or order which was ultimately reversed on the dismissal of the suit for permanent injunction. Moreover, even if it were to be assumed that the plaintiff had taken possession of the disputed land during the pendency of the suit, it was urged that an application under Section 144 would not lie.
On the other hand, the respondent supported the judgment of the first appellate court and the High Court by submitting that the appellant had taken possession of the suit land after the order of injunction was passed at the interlocutory stage. Hence, it was urged that once the suit for injunction was dismissed, it was open to the defendant to apply for restitution under Section 144, CPC.
The Supreme Court while appreciating the import of Section 144 observed that the section applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed.
However, the Apex Court found that in the facts of the case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant. Therefore, the Court held that in such circumstances, the provisions of Section 144 were not attracted there being no variation or reversal of a decree or order as contemplated by Section 144.