Section 144 of the Civil Procedure Code imposes a mandatory obligation on the party who receives the benefit of an erroneous decree to make restitution to the other party for what he has lost, and the balance of convenience is not a relevant factor in determining whether to grant restitution.

( 1 ) THIS Letters latent Appeal is directed against the Judgment of our learned brother, Madhava Reddy, J in A. A A O. No. 16 of 1971, allowing the appeal and setting aside the judgments and decrees of the Lower courts.

( 2 ) THE material facts are : The respondent Society, called "adi hindu Social Service League" is a society legistered under the Hyderabad socieliess Registration Act The respondent-Society runs a girls school in the main building bearing No 480 at Esamiah Bazar, Hyderabad. Adjacent to the main building there is an open plot of land measuring about 81 sq. yards After executing a rental agreement, the appellant herein obtaned the said open plot of land, bearing Municipal No. 4-7-1081 from the then. Secretary of the respondent-Society, on a monthly rent of Rs. 7/ -. The appellant put up a thatched hut in the said vacant land. The appellant agreed to remove the hut when he vacates the plot of land.

( 3 ) SINCE the appellant herein failed to pay rent in respect of the said plot of land from July, 1953 onwards, the respondent-Society filed small-cause suit No: 449 of 1955 against the appellant for the recovery of arrears of rent. The appellant herein resisted the said suit on the ground that he is the true owner of the said plot of land; tnat, he obtained the suit land from his brother who, in his ture, got the said land by way of gift from the Jehandarunnissa begum and that, he has perfected his title to the said land by being in long, open, continuous and un-interrupted possession of the same for over 34 years. He further denied that he was a tenant of the respondent, or that he had, at any time, paid the rents.

( 4 ) LATER on, the small-cause suit was. transferred to the Court of the IV additional Judge, City Civil Court, Hyderabad. By his judgment dated 17-11-1966, the IV Addl. Judge City Civil Court, Hyderabad, held that the tenancy and the rental agreement were proved and that, the arrears of rent were due, but dismissed the suit on the ground that, since the tenancy had been terminated by the plaintiff, the suit should have been only for compensation by damages for use and occupation and that, such a suit was out-side the congnizance of the Small Causes Court.

( 5 ) SINCE the respondent s suit for arrears of rent against the appellant was dismissed, for want of jurisdiction, the respondent filed O. S. No. 22 of 1968 in the court of the II Asst. Judge, City Civil Court. Hyderabad, for the eviction of the appellant from the suit plot of land. The appellant raised the same defences in the suit as he had raised in the small-cause suit which was filed against him for the recovery of arrears of rent. In, his written statement, the appellant herein had also stated that on 9-2-1968 he had sold away the said plot of land to one Kumari Anupameswari Bat through her father and natural guardian, Kailash Prasbad and that, she was a necessary party to the suit. Since the said purchaser was not made a party to the suit, the suit was bad for non-joinder of necessary parties. The eviction suit O. S No. 22/1968, was heard and decreed ex-parte on 2-8-1969. In execution of the ex-parte decree, the respondent obtained the possession of the said vacant plot of land from the appellant.

( 6 ) THE appellant then filed an appeal against the ex-parte decree, in the court of the Chief Judge, City Civil Court at Hyderabad. The Chief judge, City Civil Court, by his judgment dated 15-10-1969, allowed the appeal and set aside the ex-parte decree- The appellant therein then field e A. No. II of 1969 for restitution of the suit property which was taken from him by the respondent in execution of the ex-parte decree.

( 7 ) THE IV Asst. Judge, City Civil Court, at Hyderabad, allowed the said E. A. and directed the restitution of the suit property to the appellant. On Appeal, the order of restitution was upheld by the Chief Judge. City civil Court, sujbect to the direction that the staircase constructed in the premises by the resp