sec.151 CPC - But not sec.144 - Indisputedly, the possession was handed over to the appellantplaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondentsdefendants.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8400 OF 2019
(ARISING OUT OF SLP(CIVIL) No(s). 23679 OF 2019)
BANSIDHAR SHARMA(SINCE DECEASED)
REP BY HIS LEGAL REPRESENTATIVE …...APPELLANT(S)
VERSUS
THE STATE OF RAJASTHAN & ORS. …..RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. This appeal arises from the order dated 21st August, 2019
passed by the High Court of Rajasthan Bench at Jaipur.
3. The seminal facts relevant for the purpose are that late Shri
Bansidhar Sharma(predecessor of the appellant) filed a suit on 15th
July, 1961 for possession, rendition of accounts and permanent
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injunction before the Additional District and Session Judge, No. 1,
Jaipur City in which following issues were framed:
1. Whether the suit temples were founded by the plaintiffs
ancestors and his ancestors were Shebeit and Mahant of
the temples entitled to manage the same?
2. Whether the said temples and 24 shops attached to them
were founded, built and maintained by the former Jaipur
State and managed through their servants?
3. Whether the plaintiff is in possession and management of
the suit temples in his own rights and not on behalf of the
state as their Pujari or servant?
4. Whether Pandit Mahadev Ji was the Mahant or Shebait of
the suit temples and he handed over management of the
temples and shock attached to them to the Dharmarth
Vibhag of the former Jaipur estate in the year 1925 for
safety and security and proper management as he was
going on long pilgrimage?
5. Whether the plaintiff is the descendant of Pandit Mahadev
Ji and entitled to claim the possession of the temple and
shops and the account of the income thereof for the period
since 1925 from the defendants?
6. Whether the notice under Section 80 of C.P.C. is defective?
7. Whether the suit is within time?
8. Relief?
4. After the matter being heard, trial Court vide its judgment
dated 26th November, 1977 holding that there was no substance in
the suit dismissed it with costs. The judgment of the trial Court
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dated 26th November, 1977 came to be assailed in S.B. Civil First
Appeal No. 86/1979. During pendency of the appeal, the High
Court of Rajasthan passed an adinterim order on 11th January,
1978:
“Issue notice to the G.A. and the respondents.
Meanwhile the appellant shall not be dispossessed
from the premises where he resides. The rest of the
relief claimed by the appellant will be considered after
the notices are served.”
5. In furtherance of the adinterim order dated 11th January,
1978, S.B. Civil second stay application no. 163/96 came to be filed
at the instance of the appellantplaintiff on 9th October, 1996 and
the Single Judge of the High Court passed a further interim order
on second stay application on 10th October, 1996 which is as
under:
“I have heard learned counsel for the parties on the
second stay application.
During the course of hearing, learned counsel for the
appellant has placed at large upon the copy of the Order
dated 11.1.78 whereby the learned Division Bench of this
Court had directed that “in the meanwhile the party will not
be dispossessed.”
This fact has also not been controverted by the
respondents in their reply to the application, since the same
has been reproduced in the reply.
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Shri Mathur, learned counsel for the respondents has
placed on record some documents along with his affidavit.
The copies of the said document have already been
supplied to the learned counsel for the appellant.
Let reply to the said affidavit be filed by the learned
counsel for the appellant within one week from today.
In the meanwhile the status quo which existed as on the
date of passing of the order dated 11.1.78 in respect of the
premises in question shall continue pending the hearing
and disposal of this appeal.
Let this appeal be listed on 20th October, 1996.”
6. In sequel thereof, further interim order came to be passed on
22nd November, 1996. The operative part of the Order dated 22nd
November, 1996 is referred hereunder:
“Consequently the second stay application is allowed.
The respondents are directed not to interfere with the rights
of the applicants to perform sewa Pooja of the idols in the
said temple and also not to dispossess the applicants from
the premises of the temple in which they are residing.
Respondents are further directed to restore the possession
of the temple of Lord Laxminarainji, i.e., the temple in
question to the applicants/appellants forthwith or in any
case not later than 3rd of December, 1996 and the
compliance report be submitted by the respondents in this
regard immediately since the possession of the aforesaid
temple was taken by the respondents in 1988 from late
Bansidhar forcibly and without due process of law and
without obtaining any decree of possession or an order of
eviction against late Bansidhar or the present
applicant/appellants from a competent court. The interim
order, dated 10.10.1996 passed by this Court clarifying the
earlier order dated 11.1.1978 passed by learned Division
bench of this Court is confirmed pending hearing and final
disposal of the appeal. Let the appeal be listed for hearing
and final disposal on 17.12.1996.”
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7. Later, the S.B. Civil First Appeal no. 86/1979 after finally
being heard, came to be dismissed vide judgment dated 20th April,
2018 and the learned Single Judge was conscious of the fact that
certain interim orders had been passed pending first appeal and
noticing the order dated 10th October, 1996 and 22nd November,
1996, while dismissing the appeal, passed the following operative
order:
“ In compliance of the said order, appellant had been given
the possession of the suit property. Through the instant
application, it is prayed that the position as existed prior to
10.10.1996 be restored or the order dated 10.10.1996 be
recalled or modified. In the opinion of this Court, when the
appeal has been dismissed and the appellant has been
found to have no rights whatsoever over the disputed
temple and properties appurtenant to it, the application
deserves to be allowed and the position as existed before
10.10.1996 deserves to be restored. Application is allowed
accordingly.
Resultantly, this appeal is dismissed with a cost of
Rupees One Lakh and the plaintiff is directed to hand over
the possession of the disputed property to the defendantsrespondents within a period of two months from today,
failing which, the defendantsrespondents will be entitled to
get the possession through the Court. Further, the
defendantrespondents are also entitled to get the cost of
litigation from the plaintiffappellant.”
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8. The judgment dated 20th April, 2018 was further challenged in
SLP(C ) No. 13439 of 2018 before this Court and that came to be
dismissed on 17th May, 2018. After dismissal of the special leave
petition by this Court, the respondents sent an intimation to the
appellantplaintiff to hand over the possession in compliance of the
order of the Single Judge of the High Court dated 20th April, 2018,
but when no action was taken by the appellant, interlocutory
application was filed under Section 151 read with Section 144 of
Code of Civil Procedure, 1908(hereinafter being referred to as CPC)
before the Single Judge of the High Court.
9. After hearing the parties, the Single Judge of the High Court
noticing the rival contention of the parties allowed the application
vide its order dated 21st August, 2019, with a liberty to the
respondentState to take possession of the suit property and to take
police or other aid, if necessary, in taking possession of the subject
property in question which is under challenge in appeal before us.
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10. Basic bone of contention of the learned counsel for the
appellant is that the execution application under Section 144 CPC
would lie only before the Court of first instance which, in the
instant case, is the Court of Additional District and Session Judge,
No. 1, Jaipur City and not the High Court and according to the
learned counsel, the impugned order passed by the High Court
dated 21st August, 2019 is without jurisdiction.
11. Learned counsel further submits that appellant has lost a
valuable right of appeal in view of exercise of jurisdiction by the
High Court and submits that the order being not sustainable in law
deserves to be set aside and the respondents may be permitted to
adopt and avail the remedy prescribed under the law.
12. Learned counsel for the respondents, on the other hand, while
supporting the finding recorded by the learned Single Judge
submits that there was no decree or order of the trial Court by
virtue of which the appellant was given possession of the subject
property as the suit came to be dismissed in the first instance by
the trial Court which came to be affirmed in first appeal and also by
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this Court. In the present circumstances, the provisions of Section
144 CPC are not attracted as there being no variation or reversal of
a decree or order as contemplated by Section 144 CPC.
13. Learned counsel further submits that since the possession
was handed over to the appellant under the interim order passed by
the Single Judge of the High Court pending first appeal, which
finally came to be dismissed and thus, in the given circumstances,
it was imperative upon the appellant to restore possession of the
subject property and mere mentioning of Section 144 would not
denude the rights of the parties in adopting an appropriate
admissible mechanism under the law and this what has been
considered by the High Court under the impugned order dated 21st
August, 2019 and that needs no interference by this Court.
14. Before evaluating the rival submissions, it would be
appropriate to advert to Section 144 CPC:
“144. Application for restitution – (1) Where and in so far
as a decree or an order is varied or reversed in any appeal,
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revision or other proceeding or is set aside or modified in
any suit instituted for the purpose, the Court which passed
the decree or order shall, on the application of any party
entitled in 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 order or such part thereof
as has been varied, reversed, set aside or modified; and, for
this purpose, the Court may make any orders, including
orders for the refund of costs and for the payment of
interest, damages, compensation and mesne profits, which
are properly consequential on such variation, reversal,
setting aside or modification of the decree or order.”
15. The scope of post 1976 amended Section 144 CPC has been
considered by this Court in Neelathupara Kummi Seethi Koya
Phangal(Dead) by LRs Vs. Montharapalla Padippua Attakoya &
Ors.1
in paragraph 3 as under:
“3. In the 1976 Amendment Act suitable amendment was
made and Explanations (a) to (c) were added but they have
no relevance for the purpose of the case. The question
therefore, is whether the transferee executing court is a
“court of first instance” within the meaning of Section
144(1) CPC. A bare reading of subsection (1) does indicate
that the application for restitution would lie when the
decree executed is reversed or varied or modified. The
doctrine of restitution is based upon the high cardinal
principle that the acts of the court should not be allowed to
work in injury or injustice to the suitors. Section 144,
therefore, contemplates restitution in a case where property
has been received by the decreeholder under the decree,
which was subsequently either reversed or varied wholly or
partly in those proceedings or other proceedings. In those
set of circumstances law raised an obligation on the party
that received the benefit of such reversed judgment to
1 1995 Supp(3) SCC 760
9
restitute the property to the person who had lost it. In that
behalf in subsection (2) a right of suit was taken out and
an application under subsection (1) was contemplated for
execution of the decree by way of restitution. Subsection
(1) clearly indicates that it is a “court of first instance” in
which the proceedings in the suit had been initiated and a
decree was passed or the suit was dismissed, but
subsequently on appeal decreed or vice versa. The court of
first instance would, therefore, mean the court which
passed the decree or order. The transferee executing court
is not the court that passed the decree or order, but the
decree was transmitted to facilitate execution of that decree
or order since the property sought to be executed or the
person who is liable for execution is situated or residing
within the jurisdiction of that executing court. Therefore,
the court which is competent to entertain the application
for restitution is the court of first instance i.e.
Administrator's Court (Subordinate Judge) that decreed the
suit, and not the court to which the decree was transmitted
for execution. The court of first instance of the
administrator is now designated as Court of Subordinate
Judge, but application for restitution was filed in executing
court, namely, the Court of District Munsif at Androth.
Thus in the face of the language of Section 144, the District
Munsif at Androth, by no stretch of imagination be
considered to be court of first instance. Its order of
restitution is without jurisdiction and, therefore, it is a
nullity. The High Court is accordingly right in its conclusion
that the order for restitution is clearly vitiated by error of
law and lack of jurisdiction. We do not find any ground
warranting interference. The appeal is dismissed, but in the
circumstances without costs.”
16. It has been further considered by other coordinate Bench of
this Court in the recent past in Murti Bhawani Mata Mandir Rep.
Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh
& Ors.2
as under:
2 2019(3) SCC 707
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“Section 144 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.”
17. It clearly transpires that Section 144 applies to a situation
where a decree or 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. The principle of doctrine of restitution is
that on the reversal of a decree, the law imposes an obligation on
the party to the suit who received the benefit of the decree to make
restitution to the other party for what he has lost. This obligation
arises automatically on the reversal or modification of the decree
and necessarily carries with it the right to restitution of all that has
been done under the decree which has been set aside or an order is
varied or reversed and the Court in making restitution is bound to
restore the parties, so far as they can be restored, to the same
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position as they were in at the time when the Court by its action
had displaced them.
18. Indisputedly, in the instant case, there was no decree or order
of the trial Court by virtue of which the appellant was given
possession of the subject property. On the contrary, the suit filed
at the instance of the appellantplaintiff came to be dismissed with
costs and that came to be confirmed on dismissal of the first appeal
by the Single Judge of the High Court and special leave petition
filed before this Court also came to be dismissed. The possession
was handed over to the appellant of the subject property under the
interim order passed by the High Court pending first appeal of
which a reference has been made and after the appeal came to be
dismissed, its logical consequence was noticed by the High Court in
its judgment dated 20th April, 2018 directing the appellant to hand
over possession of the subject property to the respondentsdefendants obviously for the reason that on dismissal of the first
appeal preferred by the appellant, he was under an obligation to
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restore back peaceful possession to the respondents on vacation of
the interim orders .
19. In the present facts and circumstances, the respondents have
not committed any error in taking decision to call upon the
appellant for handing over possession of the subject property at
least after the special leave petition filed at the instance of the
appellant came to be dismissed under order dated 17th May, 2018
and in sequel thereto, there was no other remedy left with the
respondents than to file an application under Section 151 CPC
before the High Court for restoration of possession of the subject
property.
20. After we have heard the parties, find no error being committed
by the High Court in passing of the order dated 21st August, 2019
directing the appellant to hand over possession of the subject
property in question which was handed over to the appellant under
the interim orders passed by the High Court pending S.B. Civil First
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Appeal No. 86/1979 which finally came to be dismissed vide
judgment dated 20th April, 2018.
21. The submission of the learned counsel for the appellant that
execution application under Section 144 CPC would lie only before
the Court of first instance, which in the instant case is Additional
District and Session Judge, No. 1, Jaipur City and not the High
Court and the impugned judgment is without jurisdiction, is
without substance for the reason that there was no decree or order
of the trial Court which is varied or reversed in appeal, revision or
any other proceeding or is set aside or modified in any suit
instituted for the purpose. Indisputedly, the possession was
handed over to the appellantplaintiff pursuant to the interim order
passed by the High Court, pending first appeal which finally came
to be dismissed, its logical consequence was to restore back the
peaceful possession of the subject property to respondentsdefendants. In the given circumstances, the provisions of Section
144 CPC, in our view, are not attracted as there being no variation
14
or reversal of a decree or order as contemplated by Section 144
CPC.
22. Before parting with the order, taking note of the fact that the
proceedings were initiated at the instance of the appellantplaintiff
way back in the year 1961 and almost 59 years have rolled by now,
to give a quietus to the litigation and also the fact that the appellant
had failed at all the stages, having no authority to hold possession
of the subject property, we, therefore, consider it appropriate to
direct the appellant to hand over peaceful possession of the subject
property to the respondentsdefendants in compliance of the
judgment of the High Court dated 20th April, 2018 followed with
order dated 21st August, 2019 positively within a period of eight
weeks from today failing which this Court will take serious note of
the matter and proceedings may be instituted against the appellantplaintiff for deliberate defiance of the order of this Court.
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23. The appeal is without substance and accordingly dismissed
with the observations as indicated above. No costs.
24. Pending application(s), if any, stand disposed of.
……………………………………………J.
(MOHAN M. SHANTANAGOUDAR)
..………………………………………….J.
(AJAY RASTOGI)
NEW DELHI
NOVEMBER 05, 2019
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