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SUPREME COURT OF INDIA
MOHAN M. SHANTANAGOUDAR, AJAY RASTOGI, JJ.
BANSIDHAR SHARMA(SINCE DECEASED) REP BY HIS LEGAL REPRESENTATIVE – APPELLANT(S)
VERSUS
THE STATE OF RAJASTHAN & ORS. – RESPONDENT(S)
CIVIL APPEAL NO(S). 8400 OF 2019 (ARISING OUT OF SLP(CIVIL) No(s). 23679 OF 2019)
Decided On : 05-11-2019
(A) Civil Procedure Code, 1908 – Section 144 – Application for restitution – Maintainability – 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 – Principle of doctrine of restitution is that on reversal of a decree, law imposes obligation on the party to suit who received benefit of decree to make restitution to other party for what he has lost – This obligation arises automatically on reversal or modification of decree and necessarily carries with it right to restitution of all that has been done under decree which has been set aside or an order is varied or reversed and Court in making restitution is bound to restore parties, so far as they can be restored, to same position as they were in at the time when Court by its action had displaced them. (Para 17)
(B) Civil Procedure Code, 1908 – Section 151 read with Section 144 – Application for restitution – There was no decree or order of trial Court by virtue of which appellant was given possession of subject property – On the contrary, suit filed at instance of appellant-plaintiff came to be dismissed with costs and that came to be confirmed on dismissal of first appeal by Single Judge of High Court and special leave petition filed before this Court also came to be dismissed – On dismissal of first appeal preferred by appellant, he was under obligation to restore back peaceful possession to respondents on vacation of interim orders – Respondents have not committed any error in taking decision to call upon appellant for handing over possession of subject property at least after special leave petition filed at instance of appellant came to be dismissed – There was no other remedy left with respondents than to file application under Section 151 CPC before High Court for restoration of possession of subject property – 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 – Appeal dismissed. (Paras 18, 19, 21 and 23)
Facts of the case:
Basic bone of contention of appellant is that execution application under Section 144 CPC would lie only before the Court of first instance which, in instant case, is Court of Additional District and Session Judge, No. 1, Jaipur City and not High Court and impugned order passed by High Court dated 21st August, 2019 is without jurisdiction.
Findings of Court:
Taking note of the fact that proceedings were initiated at the instance of appellant-plaintiff 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 subject property, we, therefore, consider it appropriate to direct the appellant to hand over peaceful possession of subject property to the respondents-defendants
in compliance of judgment of the High Court dated 20thApril, 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 matter and proceedings may be instituted against appellant-plaintiff for deliberate defiance of the order of this Court.
Result : Appeal dismissed.
JUDGMENT
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 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 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.
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 ar
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