A proceeding under Order 9, Rule 13 CPC is included in the 'other proceeding' appearing under Section 144 CPC, entitling the party to the benefit of restitution.

P.G. Agarwal, J.

1. Heard Mr. C.K. Sharma Baruah learned senior counsel for the appellant and Mr. N. Choudhury, learned Counsel for the respondent.

2. The brief facts leading to the present second appeal may be noted. The present appellant/plaintiff, Sri Vishwanath Bogar instituted a Title Suit No. 63/96 before the Civil Judge (Junior Division) No. 1 Sivasagar for eviction of the respondent/defendant, Sri Gyarsilal Agarwal from the suit premises and the eviction was sought on the ground of default and bona fide requirement as provided under the Assam Urban Areas a Rent Control Act, 1972 (for short the "Act") The said Title Suit was decreed ex parte on 9.9.1996 and thereafter the execution proceeding was initiated arid on execution of the said proceeding the plaintiff got delivery of possession of the suit premises. On 18.11.1996, the respondent-defendant filed application under Order 9, Rule 13 of the CPC for setting aside the ex parte decree and thereafter vide Order dated 14.6.1999, the ex parte decree was set aside. The petitioner had filed another application under Section 144 CPC for restitution of the possession of the suit premises and the said prayer was also allowed. The present appellant thereafter preferred miscellaneous Appeal No. 16/99 against the Order dated 14.6.1999 and the said appeal was disposed of by the learned appellate court affirming the Order setting aside the ex parte decree by issuing a writ of possession of the suit premises. It may be mentioned here that the matter was brought to this Court being C.R.P. No. 232/99 and the said miscellaneous appeal was remanded back for fresh disposal and accordingly an Order dated 15.3.2003 was passed by the learned appellate court. On a petition under Section 144 read with Section 151 CPC Misc (J) Case No. 120/96 was registered, where in the present appellant filed written objection and thereafter the said Misc. (J) Case No. 120/96 was finally disposed of vide Order dated 20.9.2004. The present appellant filed Title Appeal No. 21/2004 and the same was dismissed on 31.3.2005. Hence, the present Second Appeal:

3. This Court vide Order dated 29.7.2005 admitted the appeal to be heard on the following substantial question of law :

Whether the proceeding under Order 9, Rule 13 of the Code of Civil Procedure is 'the other proceeding' within the meaning of Section 144 of the Code of Civil Procedure ?"

"Section 144, CPC. Application for restitution. (1) Where and in so far as a decree (or an order) - is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the court which passed the decree or Order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as well, so far as may be, place the parties in the position which they would have occupied but for such decree (or order) or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.

Explanation : For the purposes of Sub-section (1), the expression "Court which passed the decree or order" shall be deemed to include, -

(a) where the decree or Order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance :

(b) where the decree or Order has been set aside by a separate suit, the Court of first instance which passed such decree or order,

(c) where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court which, if the suit wherein the decree or Order was passed were instituted at the time of making the application for restitution under this Section, would have jurisdiction to try such