Setting aside order or restitution.

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This revision is by the plaintiff in the suit O.S. No. 696 of 1974 on the file of the District Munsif of Thanjavur. The respondents herein are the defendants in the suit. The suit of the plaintiff was for declaration of title and for permanent injunction. That suit was decreed by the first Court as prayed for. On appeal by the defendants A.S. 42 of 1978 on the file of the Subordinate Judge, Thanjavur, the title of the plaintiff in respect of a portion alone was upheld and injunction thereof granted; and the suit in respect of the remaining portion was dismissed. The plaintiff preferred S.A. 2028 of 1978 to this Court, and there was a cross-objection by the defendants. The second appeal by the plaintiff was dismissed by this Court, and the cross-objection by the defendants was allowed dismissing the suit as a whole. Defendants 5 and 6 with the consent of the other defendants took out E.P. 195 of 1985 for delivery of possession, demolishing the construction made thereon by the plaintiff. The plaintiff contested this move of the defendants stating that her suit for declaration of title and possession having been dismissed, the defendants could not ask for such independent reliefs. However, the Court below thought reliefs to the defendants could be accorded under S.144, C.P.C. hereinafter referred to as the Code , and allowed the application. This revision is directed against the orders of the Court below.

2. Before me, Mr. U. Thyagarajan, learned counsel for the petitioner-plaintiff would submit that it is nobody's case, that plaintiff obtained possession and put up construction pursuant to or under the covet of any decree or order of Court so that the defendants on reversal of such order or decree, could seek the aid of Sec.144 of the Code. and claim restitution. If I assess and take note of the principle under Sec.144 of the Code, in the background of the facts of the present case, I have to sustain the submission of the learned counsel for the plaintiff. The suit of the plaintiff was one for declaration of title and for permanent injunction. The finding rendered by the Court while dismissing the suit for the plaintiff is that the plaintiff was not in possession on the date of the suit. It is not and it could not be the case of the defendants that the plaintiff got possession pursuant to and under the cover of the decree passed by the first Court or the decree passed by the lower appellate Court. S.144 of the Code, as a whole, reads as follows :-

"144(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 will, so far as he 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, order);

Explanation :- For the purpose of Sub-Sec. (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 applic