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GAUHATI HIGH COURT
J.M.Srivastava, J.
Ranjit Singh -Appellant
Versus
Narayan Mandal -Respondent
Civil Revision No. 146 of 1990
Decided On : 22-06-1990
CIVIL PROCEDURE - RESTITUTION - SECTION 144 - INTERPRETATION - SCOPE AND APPLICABILITY - SETTING ASIDE OF EXPARTE DECREE - WHETHER INCLUDES 'REVERSED' - 'OTHER PROCEEDING' - WHETHER INCLUDES APPLICATION UNDER ORDER 9 RULE 13 OF THE CODE - WHETHER FORMAL DECREE NECESSARY - WHETHER EXECUTION APPLICATION NECESSARY.
Fact of the Case:
The petitioner obtained possession of the property in execution of an ex-parte decree, which was later set aside. The opposite party filed an application under section 144 of the Code of Civil Procedure (CPC) for restitution of the property, which was allowed. The petitioner challenged the order, contending that the provisions of section 144 were not attracted, that a formal decree was required before the order could be enforced, and that an execution application was necessary.
Finding of the Court:
The court held that the provisions of section 144 of the CPC were available to the opposite party seeking restitution following the setting aside of the ex-parte decree under Rule 13 of Order 9 of the CPC. The court interpreted 'reversed' in section 144 to include 'set aside' and 'other proceeding' to include an application under Order 9 Rule 13 of the CPC. The court also held that a formal decree was not necessary before the order could be enforced and that an execution application was not required to execute the order of restitution.
Issues: 1. Whether the provisions of section 144 of the CPC were available to the opposite party seeking restitution following the setting aside of the ex-parte decree under Rule 13 of Order 9 of the CPC? 2. Whether 'reversed' in section 144 includes 'set aside' and 'other proceeding' includes an application under Order 9 Rule 13 of the CPC? 3. Whether a formal decree was necessary before the order could be enforced? 4. Whether an execution application was required to execute the order of restitution?
Ratio Decidendi: 1. The court interpreted the provisions of section 144 of the CPC to include cases where an ex-parte decree is set aside under Rule 13 of Order 9 of the CPC. The court reasoned that the intention of the legislature in amending section 144 in 1976 was to resolve the controversy regarding the availability of restitution in cases where a decree is set aside by a subsequent suit, and not to deprive a person from the remedy of restitution in cases like the present, where prior to the amendment, the provisions of section 144 were undoubtedly considered as available for restitution. 2. The court interpreted 'reversed' in section 144 to include 'set aside' and 'other proceeding' to include an application under Order 9 Rule 13 of the CPC. The court reasoned that the plain meaning of the word 'reversed' includes 'set aside' and that an application under Order 9 Rule 13 of the CPC sets in motion the process of Court action culminating in the final order made, which can be construed as a 'proceeding' within the meaning and scope of section 144(1) of the CPC. 3. The court held that a formal decree was not necessary before the order could be enforced. The court reasoned that the definition of 'Decree' in section 2(2) of the CPC does not mean that a formal decree is necessarily to be prepared or drawn up before the order can be given effect or enforced. 4. The court held that an execution application was not required to execute the order of restitution. The court reasoned that the order of restitution is simple, just restitution of the property obtained in execution of a decree which has been set aside and nothing more, and hence the order can be enforced or executed without a formal decree or an execution application.
Final Decision: The court dismissed the petition with costs to the opposite party.
2. The suit was filed by the plaintiff for declaration of title and khas possession over the land after removal of the defendant, the present opposite-party. The suit was decreed ex-parte on 29. 8. 86. The petitioner executed the' decree in Title Execution No. 14 of 1986 and obtained possession of the land and the house thereon on 30.9.86.
3. The opposite party filed application under Rule 13 of Order 9 of the Code of Civil Procedure hereafter referred as the 'Code' which was Misc. (J) Case No. 63 of 1986. By order dated 6.4.87 the exparte decree dated 29.8.86 was set aside. The opposite party by application under section 144 of the Code then prayed for restitution of the property which was Misc. (J) No. 67 of 1987. The learned Munsiff by order dated 6.1.88 allowed the prayer for restitution of the property. An appeal Misc. (J) No. 8 of 1'988 was filed by the petitioner which was dismissed by order dated 13.7.89. The petitioner has filed a second appeal before this Court.
4. The opposite party prayed for issue of writ for delivery of possession, pursuant to the order dated 6.1.88 in Misc. (J) Case No. 67/87. The petitioner filed objection which was rejected by order dated 16.4.90 which is impugned in this petition.
5. Shri J. N. Sarma, learned counsel for the petitioner has contended that the order dated 6.1.88 whereby the application under section 144 of the Code was allowed was itself without jurisdiction because the provision of section 144 of the Code as amended in 1976, was not attracted in the present case, that no decree having been prepared pursuant to the order dated 6.1.88 there could be no question of its execution and that no application for execution had been made and hence the impugned order for issue of writ for delivery of possession was not correct and sustainable.
6. Shri G. N. Sahewalla, learned counsel for the opposite party has contended that the provision of section 144 of the Code were attracted and available because the exparte decree in execution of which the petitioner had obtained possession had been set aside and the opposite-party who was so dispossessed was entitled to recover possession that even though the order under section 144 of the Code is a decree it was not required that a formal decree should be drawn up before the order could be enforced and that no formal execution application was required to be filed before the Court could execute the order for restitution.
7. I have considered the submissions for the parties.
8. In so far as the first contention for the petitioner is concerned, Shri J. N. Sarma, learned counsel appearing on his behalf has submitted that section 144 of the Code after amendment on 1.2.77 by Code of Civil Procedure Amendment Act, 1976 does not provide for restitution, in such a case and has relied upon Garinda Singh vs. Dhana Bai, AIR 1989 Orissa 103 where a view has been taken that after amendment of section 144 of the Code its provisions are not available for restitution of property, of which possession has been taken in pursuance of an exparte decree after it has been set aside.
9. Shri J. N. Sarma, learned counsel for the petitioner has also cited Gopal Paroi vs. Swarna Bewa, AIR 1931 Cal. 14 where it was held that section 144 only applied where a decree was varied or reversed by a superior Court on appeal or revision or it may be on reference. But, if a decree is set aside either by a proceeding in the- suit itself or if it is set aside by a decree in another suit altogether or if, without being set aside by such a decree, it is superseded these are matters which are not within the words of the section.
10. Shri G. N. Sahewalla, learned counsel for the opposite party on the other hand has cited Jagat Bandhu Shaw vs. Ram Nagina Pandey, AIR 1977 Cal. 281 in which Gopal Paroi (supra) (AIR 1931 Cal. 14) wa
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