IMPORTANT POINT
The main legal point established in the judgment is the interpretation of Section 144 of the Code of Civil Procedure and the jurisdiction of the First Appellate Court to consider a restitution application.

JUDGMENT :

TAPABRATA CHAKRABORTY, J.

1. The present appeal has been preferred challenging the judgment and decree dated 27th January, 2020 passed by the learned Additional District Judge, 4th Court, Alipore in Miscellaneous Appeal No. 178 of 2019.

2. Shorn of unnecessary details, the facts are as follows:

(a) A partnership firm, namely, M/s Naba Punjabi Stores and its partners, namely, Niyati Ghosh (hereinafter referred to as Niyati) and the Mukti Ghosh (hereinafter referred to Mukti) preferred a suit for dissolution of partnership and for accounts being Title Suit No. 1344 of 2010 against another partner, namely, Sujit Banik (hereinafter referred to as Sujit).

(b) The said suit was decreed in preliminary form by judgment and decree dated 16th May, 2013. Aggrieved thereby, Sujit preferred a title appeal being T.A. No. 153 of 2013. During pendency of the said appeal, the plaintiffs put the decree into execution by filing a title execution case being T. Ex. No 17 2013. On the basis of an order passed in the same on 26th February 2015, Sujit was dispossessed from the suit property on 27th February 2015.

(c) Thereafter, Sujit filed an application under Section 144 of the Code of Civil Procedure (hereinafter referred to restitution application) read with Section 151 of the Code of Civil Procedure (hereinafter referred to the Code) in the pending appeal. Upon contested hearing, the appeal was allowed by a judgment and decree dated 23rd November, 2015 setting aside the judgment and decree dated 16th May 2013 passed by the learned Court below and the suit was sent down on remand to the learned Court below for proper consideration and the restitution application was allowed by an order dated 20th February, 2016.

(d) Challenging the judgment and decree dated 23rd November, 2015 and the order dated 20th February, 2016 allowing the restitution application, Niyati and Mukti preferred two separate appeals before this Court being FMAT No. 288 of 2016 and FMAT No. 327 of 2016.

(e) By a judgment dated 2nd May, 2016, FMAT 288 of 2016 was allowed setting aside the order of remand and sending the appeal back to the learned First Appellate Court. The other appeal being FMAT 326 of 2016 was also disposed of on 2nd May, 2016 setting aside the order impugned in the restitution application being the order dated 20th February, 2016.

(f) Thereafter the First Appellate Court disposed of the title appeal being TA No. 153 of 2013 by a judgment dated 2nd November, 2016 setting aside the judgment and decree passed in the title suit being T.S. No. 1344 of 2010. By the said judgment, the restitution application of Sujit was also dismissed.

(g) Subsequent thereto, Sujit again filed a restitution application before the learned Civil Judge (Junior Division) 2nd Court at Alipore being Misc. Case No. 193 of 2017. By an order dated 18th August, 2018 the said restitution application was dismissed since the same had already been decided by the learned First Appellate Court by the judgment and order dated 2nd November, 2016;

(h) Challenging the said order, Sujit filed a revision application before this Court being CO No. 3174 of 2018 which was disposed of granting liberty to Sujit to file a proper appeal in the District Court at Alipore.

(i) Pursuant thereto, Sujit preferred the appeal being Misc. Appeal No. 178 of 2019. The said Misc. Appeal was disposed of allowing Sujit’s application for restitution. The said order is under challenge in the present appeal.

3. Mr. Basu, learned senior advocate appearing for the appellants being Niyati and Mukti submits that Sujit himself chose to file the restitution application before the First Appellate Court prior to reversal of the decree and as such the said application could not have been an application for restitution and the same was in fact an application under Section 151 of the Code. While disposing of the said application the concerned Court came to a categoric finding that Mukti was the actual tenant of the shop room and such finding