The mandatory nature of the court to order restitution under Section 144 of the CPC and the principles of restitution in the context of setting aside an exparte decree.

The above Civil Revision Petition has been filed by the decree holder in E.P.No.6 of 2015 in O.S.No.668 of 2014 on the file of District Munsif Court, Chengalpattu, challenging the fair and decreetal order passed in I.A.No.268 of 2016 in A.S.No.24 of 2016 on the file of Additional Subordinate Court, Chengalpattu.

2. The revision petitioner filed the suit in O.S.No.668 of 2014 for delivery of possession. Since the respondent, who is the defendant in the suit, remained absent, they were set exparte and an exparte order was passed on 09.04.2015. Thereafter, the respondent filed an application in I.A.No.1515 of 2015 to condone the delay of 102 days in filing the application to set aside the exparte decree.

3. After contest, he Trial Court dismissed the application on 05.01.2016.

4. Pursuant to the decree passed in O.S.No.668 of 2014, the decree holder-revision petitioner filed an Execution Petition in E.P.No.6 of 2015. The Trial court dismissed the application in I.A.No.1515 of 2015 on 05.01.2016. On the very same day, the Execution Petition in E.P.No.6 of 2015 was also ordered. Pursuant to the order passed in the Execution Petition, delivery warrant was issued on 06.01.2016.

5. Challenging the orders passed in I.A.No.1515 of 2015, the respondent-defendant filed a Civil Revision Petition in C.R.P.(NPD) No.60 of 2016 and also filed a Civil Revision Petition in C.R.P.(NPD) No..793 of 2016, challenging the order passed in E.P.No.6 of 2015. This court, by common order dated 01.07.2016, allowed both the Civil Revision Petitions and set aside the exparte decree passed in O.S.No.668 of 2014.

6. As against the common order passed in C.R.P.(NPD) Nos.60 of 2016 & 793 of 2016, the revision petitioner filed appeals before the Hon'ble Supreme Court of India in Civil Appeal Nos. 19509 and 19510 of 2016 and the Apex Court, by order dated 29.07.2016, dismissed both the appeals.

7. It is also pertinent to note that this court in C.M.P.No.316 of 2016 in C.R.P.(NPD) No.60 of 2016, on 08.01.2016, while ordering notice of motion for a period of three weeks in the Civil Revision Petition, granted an order of interim stay till then. On the very same day, i.e., on 08.01.2016, the Bailiff in E.P.No.6 of 2015 in O.S.No.668 of 2014, submitted a report before the Executing Court stating that delivery has been effected. In the report, there is an endorsement made by the defendant that he would take away the movable properties at his own responsibility. When this fact was intimated to this court, this court modified the order of stay already granted to the extent that the parties have to maintain status quo. There is also an observation that the court is convinced that the decree holder has taken possession of the property.

8. After the disposal of the Civil Revision Petition in C.R.P.(NPD) No.60 of 2016 and 793 of 2016, the defendant filed an application under section 144 read with section 151 of CPC in E.A.No.74 of 2016 in E.P.No.6 of 2015 for restitution of possession.

9. The case of the defendant in E.A.No.74 of 2016 was that the plaintiff took possession of the property pursuant to an exparte decree and when the exparte decree itself was set aside by this court in C.R.P.(NPD) Nos.60 of 2016 and 793 of 2016, which was also confirmed by the Hon'ble Supreme Court of India in S.L.P.(Civil) Nos.19509 and 19510 of 2016, they are entitled for restitution of possession. The plaintiff filed their counter and contested the application in E.A.No.74 of 2016 and the Executing Court, taking into consideration the case of both the parties allowed the application and directed the plaintiff-decree holder to hand over possession of the suit property to the defendant.

10. Aggrieved over the order passed in E.A.No.74 of 2016, the decree holder filed an appeal in A.S.No.24 of 2016 on the file of Additional Sub Court, Chengalpattu. In the said appeal, the plaintiff filed an application under Order 41 Rule 5(1)(2) read with section 151 of CPC to stay all further proceedings of the