M.R. Hariharan Nair, J.

The question that arises for consideration is whether a court which executes the order of eviction passed by a Rent Control Court has got the right to eider restitution.

2. The revision petitioner obtained an order of eviction under S.11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, (Act 2/1965) against the respondent herein from the Rent Control Court, Kalpetta in R-CP. No. 34 of 1994. In execution of the order, petitioner got delivery. The tenant then filed an application under S.11(2)(c) of the Act and that was allowed. The landlord has taken up that order in appeal and it is pending. In the meantime, on the strength of the order under S.11(2)(c) of the Act, the tenant moved the execution court seeking re-delivery. As per the impugned order, the Execution Court allowed the petition of the tenant for re-delivery in view of the subsequent order under S.11(2)(c) of the Act and that is the order impugned herein.

3. The revision petitioner contends that the execution court has no jurisdiction to invoke power under S.144 of the C.P.C. and that such a petition has to be moved before court which passed the order for eviction. The tenant would contend that the Rent Control Court is not vested with power under S.144 of the C.P.C. and in view of that position, petition for restitution can be filed only before the execution court which had effected delivery.

4. Atta Koya v. Kunhi Seethi Koya (1977 KLT 570) considered the question whether a petition for restitution in respect of the execution effected pursuant to the order of the Administrator's Court can be maintained before the execution court to which the decree was transferred in view of the abolition of the Administator's Court. It was found that the application has to be filed before court which decided the case in the first instance and it cannot be made before a court to which execution of the decree had been transferred. The execution court exhausts its functions in respect of the particular order as soon as the execution of the original order is effected. It was held that the court of first instance to which the application under S.144 has to be made is only the successor court in view of the abolition of the court which passed the decree. The aforesaid decision was taken up to the Supreme Court and it was confirmed vide Neelathupara v. Montharapalla (AIR 1994 SC 1591) that the application would lie only to the court first instance or to the successor court.

5. S.144 of the C.P.C. provides as follows:

"144. 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 proceedings 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 will, 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 purpose of sub-s.(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 orders was passed were instit