Supreme Court of India
MURTI BHAWANI MATA MANDIR REP. THROUGH PUJARI GANESHI LAL (D) THROUGH LR. KAILASH versus RAMESH & ORS. on 21 January 2019
MURTI BHAWANI MATA MANDIR REP. THROUGHPUJARI GANESHI LAL (D) THROUGH LR. KAILASH
v.
RAMESH & ORS.
(Civil Appeal No. 880 of 2019)
JANUARY 21, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908 – s.144 – When not attracted– Suit for permanent injunction instituted by one ‘GL’ for restrainingrespondent nos.1, 2 and one ‘G’ from interfering with the possessionof the plaintiff over the land in dispute – Suit dismissed by the trialcourt – Appeals thereagainst were dismissed – ‘G’ filed applicationu/s.144, CPC inter alia for restoration of possession of the disputedland – Application dismissed by the executing court – Appeal filedby respondent no.1 – Case remanded back to the executing court –Second appeal filed by the appellant before the High Court, whichwas dismissed – Plea of the appellant that the plaintiff was notplaced in possession by the court under any decree or order whichwas ultimately reversed on the dismissal of the suit for permanentinjunction and hence, s.144 was not attracted – Held: s.144 appliesto a situation where a decree or an order is varied or reversed inappeal, revision or any other proceeding or is set aside or modifiedin any suit instituted for the purpose – In the present case, the interimorder of the trial court did not require the defendant to hand overthe possession to the plaintiff – There was no decree or order of thetrial court by virtue of which the appellant was given possession ofthe property, nor did any decree or order mandate that the respondenthand over possession to the appellant – In these circumstances, theprovisions of s.144 were not attracted there being no variation orreversal of a decree or order, as contemplated by s.144 – ExecutingCourt was justified in declining to entertain the applicationu/s.144 – Judgment of the High Court set aside.
Suit for permanent injunction was instituted by one ‘GL’,claiming as next best friend of the deity situated at Bhawani MataMandir, against the respondent nos.1, 2 and one ‘G’. The suitwas dismissed by the trial court. Appeals filed thereagainst were
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Adismissed. ‘G’ filed application u/s.144, CPC inter alia forrestoration of possession of the disputed land. The applicationwas dismissed by the executing court. Respondent no.1 filedappeal, which was allowed and the case was remanded back tothe executing court. The appellant filed second appeal beforethe High Court, which was dismissed. Hence, the present appeal.B
Allowing the appeal, the Court
HELD: 1.1 Section 144, Code of Civil Procedure, 1908applies to a situation where a decree or an order is varied orreversed in appeal, revision or any other proceeding or is setCaside or modified in any suit instituted for the purpose. In thatsituation, the Court which has passed the decree may causerestitution to be made, on an application of any party entitled, soas to place the parties in the position which they would haveoccupied but for the decree or order or such part thereof as hasbeen varied, reversed, set aside or modified. The court isDempowered to pass orders which are consequential in nature tothe decree or order being varied or reversed. In the presentcase, the interim order of the Trial court did not require thedefendant to hand over the possession to the plaintiff. There wasno decree or order of the Trial court by virtue of which theEappellant was given possession of the property, nor did any decreeor order mandate that the respondent hand over possession tothe appellant. [Paras 10, 11] [533-F-H; 534-A]
1.2 In these circumstances, the provisions of Section 144,CPC were not attracted there being no variation or reversal of aFdecree or order as contemplated by Section 144. The executingcourt was justified in declining to entertain the application underSection 144, CPC. The order of the first appellate court whichwas affirmed by the High Court was unsustainable. The judgmentof the High Court is set aside. [Paras 12, 13] [534-B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 880 ofG2019.From the Judgment and Order dated 03.12.2004 of the High Courtof M. P., Bench at Indore in SA No. 407 of 2002.
Alok Bhachawat, K. V. Bharathi Upadhayay, Ms. Pratibha Jain,HAdvs. for the Appellants.
MURTI BHAWANI MATA MANDIR REP. THR. PUJARI GANESHI LAL(D) THR. LR. KAILASH v. RAMESH
Harshvardhan Jha, Mrs. Yugandhara Pawar Jha, Ms. MayuriShukla, Abhishek Chaudhary, Advs. for the Respondents.
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The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J.
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1. Leave granted.
2. This appeal arises from a judgment of a learned Single Judgeof the High Court of Madhya Pradesh at its Bench at Indore. A suit[1]was instituted in the Court of the Civil Judge, Class II, Sardarpur, Dist.Dhar (M.P.) by one Ganeshi Lal claiming as the next friend of the dietysituated at Bhawani Mata Mandir, Gram Dasai, Tehsil Sardarpur. Thesuit was for a permanent injunction against Geetabai (since deceased)and respondent Nos. 1 and 2 restraining them from interfering with thepossession of the plaintiff over the agricultural land in dispute.
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3. The issues which were framed in the suit for the conclusionwere as follows:
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A4. The suit was dismissed by the Trial court on 11 April 1981 onthe ground that the plaintiff had failed to prove possession over the landin dispute. Both the first appeal as well as the second appeal weredismissed on 23 March 1982 by the District Judge and on 5 May 1984by the High Court.B5. After the disposal of the second appeal, Geetabai filed an A
5. After the disposal of the second appeal, Geetabai filed anapplication under Section 144 of the Code of Civil Procedure, 1908(“CPC”) for the restoration of possession of the disputed land and forawarding mesne profits, before the Judge, Civil Court, Class I, Sardarpur[2].
6. The application was dismissed on 24 August 1998 by theCexecuting court. The appeal filed before the Additional District Judge bythe first respondent was allowed and the case was remanded back tothe executing court. The appellant filed a second appeal before the HighCourt which was dismissed in limine by the impugned order dated 3December 2004 on the ground that no substantial question of law arose.
D7. Assailing the judgment of the High Court, the appellant submitsthat the provisions of Section 144 of the CPC were not attracted. TheAdditional District Judge was, it was urged, not justified in remandingthe proceedings back to the executing court. Learned counsel appearingon behalf of the appellant submits that the plaintiff was not placed inpossession by the court under any decree or order which was ultimatelyEreversed on the dismissal of the suit for permanent injunction. In thecircumstances, Section 144 was not attracted. Learned counselsubmitted that in order to attract the application of Section 144, threeconditions must be satisfied:
(i) Restitution sought must be in respect of a decree or orderFwhich has been varied or reversed;
(ii) The party applying must be entitled to the benefit of restitution;
(iii) The relief which is claimed must be consequential to thereversal or variation of the decree or order.
8. In the instant case, it has been urged that none of theseconditions were satisfied. Moreover, even if it were to be assumed thatthe plaintiff had taken possession of the disputed land during the pendencyof the suit, it was urged that an application under Section 144 would notlie. Moreover, it was urged that the Trial court did not decide the question G
H2M.J.C. No. 21 of 1986
as to whether the respondent was in possession of the disputed land asis evident from the fact that on issue No. 5 no finding was returned.
On the other hand, learned counsel appearing on behalf of therespondent supported the judgment of the first appellate court and theHigh Court by submitting that it was the case of the first respondent thatthe appellant had taken possession of the suit land after the order ofinjunction was passed at the interlocutory stage. Hence, it was urgedthat once the suit for injunction was dismissed, it was open to the defendantto apply for restitution under Section 144, CPC.
9. In evaluating the rival submissions, it would be necessary toadvert to the provision of section 144 of the CPC:
“144. Application for restitution – (1) Where and in so far as adecree or an order is varied or reversed in any appeal, revision orother proceeding or is set aside or modified in any suit institutedfor the purpose, the Court which passed the decree or order shall,on the application of any party entitled to any benefit by way ofrestitution or otherwise, cause such restitution to be made as will,so far as may be, place the parties in the position which theywould have occupied but for such decree or order or such partthereof as has been varied, reversed, set aside or modified and,for this purpose, the Court may make any orders, including ordersfor the refund of costs and for the payment of interest, damages,compensation and mesne profits, which are properly consequentialon such variation, reversal, setting aside or modification of thedecree or order…….”
10. Section 144 applies to a situation where a decree or an orderis varied or reversed in appeal, revision or any other proceeding or is setaside 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 theposition which they would have occupied but for the decree or order orsuch part thereof as has been varied, reversed, set aside or modified.The court is empowered to pass orders which are consequential in natureto the decree or order being varied or reversed.
11. In the present case, the interim order of the Trial court did notrequire the defendant to hand over the possession to the plaintiff. There AB
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Awas no decree or order of the Trial court by virtue of which the appellantwas given possession of the property, nor did any decree or order mandatethat the respondent hand over possession to the appellant.
12. In these circumstances, the provisions of Section 144, CPCwere not attracted there being no variation or reversal of a decree orBorder as contemplated by Section 144.
13. The remedy of the first respondent, if any, did not lie in anapplication for restitution before the executing court under Section 144,CPC. The executing court was justified in declining to entertain theapplication under Section 144, CPC.
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14. The order of the first appellate court which has been affirmedby the High Court was unsustainable.
15. Accordingly, we allow the appeal and set aside the judgmentof the High Court dated 3 December 2004. The application filed by therespondent before the executing court shall stand dismissed. No costs.D
16. Pending application(s), if any, shall stand disposed of.
Divya Pandey
Appeal allowed.
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