A court setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code can restore back possession to the judgment-debtor who in the meantime had been dispossessed in execution of such an ex parte decree.

( 1 ) THUS Rule obtained on a revisional application raises a short point as to whether a Court setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code can restore back possession to the judgment-debtor who in the meantime had been dispossessed in execution of such an ex parte decree.

( 2 ) THE facts are not in dispute. The present petitioner before us obtained an ex parte decree against the opposite party in an ejectment suit and recovered possession in execution thereof. In the meantime the opposite party filed an application under Order 9, Rule 13 of the Code. That application succeeded and the ex parte decree- was set aside.

( 3 ) IN view of the fact that the decree had been so set aside the opposite party filed an application under Section 144 read with Section 151 of the Code for restitution. This was opposed by the plaintiff petitioner. All his objections being overruled, the learned Judge, 5th Bench, City Civil Court, Calcutta by the order impugned dated June 7, 1983 passed in Misc. Case No. 234 of 1980 directed restitution in favour of the opposite party. Feeling aggrieved the petitioner has preferred the present revisional application.

( 4 ) MR. Banerjee, appearing in support of this revisional application, has contended that the Court in the present case had no jurisdiction to direct restitution under the provisions of Section 144 of the Code. According to Mr. Banerjee, Section 144 contemplates restitution only when the decree has been varied or reversed by a superior Court or where it is set aside in an independent suit. This section, Mr. Banerjee contends, does not contemplate any restitution when the decree is set aside by the Court which passed it under Order 9. Rule 13 of the Code. Mr. Banerjee refers to the amended provision in Section 144 in support of his contention.

( 5 ) ON a careful consideration of the point thus raised and particularly in the light of the amendments incorporated in Section 144 of the Code from time to time, we are unable to accept such a contention. The power or the jurisdiction of a Court to restitute a judgment-debtor to possession when a decree or order, in terms whereof he had been dispossessed had been varied or reversed does not really emanate from Section 144 though the said provision recognises such a power in Court and lays down the procedure therefor. Mr. Banerjee had been fair enough to concede that even if we accept his contention and hold that the Court had no power to direct restitution in terms of Section 144 of the Code that would not render the order wholly beyond jurisdiction because the Court has always the inherent power to put the parties back to the position which they would have occupied but far the decree so varied or set aside.

( 6 ) BUT even on the actual issue raised by Mr. Banerjee we are unable tp accept his contention that a Court setting aside a decree under Order 9, Rule 13 of the Code cannot invoke powers under Section 144 thereof to direct restitution. The recent amendment of the provision has resolved the conflict in judicial decisions on the point and in our view after such amendment there is no further scope for contending as such. Before recent amendment the section provided 'where and in so far as a decree is varied or reversed, the Court of the first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made. . . . . " On the terms of the section as it then stood there was a clear divergence in judicial opinion as to the import and meaning of the term 'varied' or 'reversed'. Chief Justice Rankin in the case of Gopal Parui v. Swarna Bewa, (1930) 34 Cal WN 707 : (AIR 1931 Cal 14) put a restricted meaning when he held that in view of the usual connotation the term 'varied' or 'reversed' must mean variation or reversal by a superior Court. Accordingly, the learned Chief Justice took the view that Section 144 would not