The main legal point established in the judgment is the absolute right of restitution under Section 144 and the duty of the court to ensure restitution, regardless of the pendency of an appeal.

JUDGMENT

(Prayer: Civil Revision Petition under Article 227 of the Constitution of India to set aside the fair and final order dated 27.04.2019 made in I.A.No.375 of 2018 in O.S.No.67 of 2008 on the file of the I Additional District Munsif, Bhavani by allowing this CRP.)

1. This is an unfortunate case. This is a revision arising against dismissal of a petition filed for restitution. The first defendant is the petitioner before me. The defendant suffered an exparte decree on 04.10.2008. To set aside the same, he filed an application with condonation of delay in I.A.No.262 of 2009. The said application was dismissed on 12.02.2010. Thereafter, he preferred a revision before this Court in C.R.P.(NPD) No.4944 of 2011. The said revision came to be allowed condoning the delay on payment of costs of Rs.5,000/- with a further direction to dispose of the application under Order 9 Rule 13. This order was passed on 21.02.2017. The condition having been complied, the application to set aside the exparte decree was taken up. The application under Order 9 Rule 13 was taken up for disposal and the said application was allowed on 13.10.2017.

2. In the meantime, in order to execute the exparte decree for rectification of a sale deed, an application was filed in E.P.No.8 of 2009. The said E.P., was allowed and a sale deed was executed in favour of the holder of the exparte decree. Thereafter, he took out an application in E.A.No.319 of 2010 for recording of delivery. On 09.08.2011, the Court recorded that possession was handed over on 04.08.2011 and E.A.No.319 of 2010 was closed.

3. On the setting aside of the exparte decree on 25.10.2017, the parties went for trial and the suit was dismissed after contest on 12.03.2018. The first defendant from whom possession was taken by virtue of being judgment debtor pursuant to the exparte decree took out an application for re-delivery in I.A.No.375 of 2018.

4. This application came to be dismissed, against which the present revision has been filed. The ground on which it was resisted was that, as against the dismissal of the suit on 12.03.2018, an appeal had been filed in A.S.No.22 of 2018 and therefore re-delivery should not be ordered.

5. This fantastic proposition of law seems to have been accepted by the trial Court while dismissing the petition for re-delivery. It is against this order the present Civil Revision Petition has been preferred.

6. Heard Mr.V.Venkatesh for Mr.S.Lakshmanasamy. The respondents though served, have not entered appearance.

7. The rule of restitution is not a statutory rule, but arises Ex debito justitiae. It is the duty of the Court to ensure that a person who has been dispossessed pursuant to an order passed by it, is put back in possession once the decree on the basis of which possession was handed over, is set aside. In this case, not only such decree has been set aside, but after contest, the suit itself came to be dismissed on 12.03.2018. In fact, the Court need not wait for an application by a party for restitution. It is the duty of the Court to ensure that its orders do not affect any party. This is the basis of the principle actus curiae neminem gravabit.

8. In this case, the Court did not restore the parties to the position prior to the date of exparte decree on the said decree being set aside. Not stopping with this, it did not restore the possession of the parties even after the suit has been dismissed. Such a state of affairs is unfortunate.

9. The principle of restitution also creates an obligation on the party to the record, who received the benefit of the erroneous judgment or order, to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution is against the interest of justice. The obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that had been done in the previous decree and the Court m