An order for restitution passed under S. 151, C. P. C. in exercise of the inherent power of the Court loses its force when the decree is again passed ex parte.

S. C. MOHAPATRA, J.

( 1 ) PLAINTIFF is the petitioner in this Civil Revision.

( 2 ) TITLE Suit No. 10 of 1971 was filed for declaration of title and recovery of possession of 21 acres 11 decimals of land declared to be in possession of the defendants in a proceeding under S. 145, Cr. P. C. The suit was decreed ex parte. While the application of the defendants for setting aside the ex parte decree was pending, plaintiff got the delivery of possession of the properties through the Executing Court on 2-3-1973 in execution of the ex parte decree for recovery of possession. The application under O. 9, R. 13, C. P. C. , which was rejected by the trial Court was allowed by this Court in M. A. No. 68 of 1973 on 29-7-1975 and the ex parte decree was set aside. Thereafter, the defendants filed an application for restitution which was allowed by the Executing Court on 1-3-1977. Before delivery of possession to the defendants on the basis of the order of restitution, the suit was dismissed for default and was restored to file without notice to defendants. Thereafter, on 3-11-1977 plaintiff again obtained an ex parte decree, which has since been set aside on 19-7-1979. On the decree being set aside, the defendants filed an application on 31st October, 1980 praying the Executing Court to give effect to the order dated 1-3-1977, for restitution of the property. The material portion of the petition reads as follows :-"that in view of rejection of the appeal filed by the O. P.-D. Hr. the order passed on 1-3-77 stands operative. Thus the follow up action putting the possession of suit property in favour of the petitioner- J. Dr. who have been dispossessed on the strength of the reversed order needs to be restituted as envisaged u/s. 144, Civil Procedure Code as prayed in the abovementioned case. "plaintiff took some adjournments and lastly the application for adjournment being refused, the impugned order was passed on the finding : ". . . . . . . Since no order has been passed reversing the oder of this Court passed on 1-3-1977, the said order still holds good. . . . . . " correctness of this order is in dispute in this civil revision.

( 3 ) MR. D. P. Sahoo, the learned counsel for the decree-holder, submitted that the trial Court exercised jurisdiction with material irregularity in finding that the order dated 1-3-1977 still holds good without taking into consideration that the basis of the order dated 1-3-1977 was lost when the suit was again decreed ex parte although the same has subsequently been set aside. Mr. P. Palit, the learned counsel for the judgment-debtors, on the other hand justified the impugned order submitting that the order for restitution being a decree became final since no appeal was preferred against the same.

( 4 ) AS has been held in ILR (1980) 2 Cuttack 571 (Babaji Charan Sahoo v. Laxmipriya Debi) :"the doctrine (of) restitution as embodied in Section 144, Civil Procedure Code is based upon the cardinal principle of law that the acts of Courts should not be allowed to work injury on the suitors. The section contemplates restitution in a case where the property has been received by the decree-holder under this decree and that decree is subsequently, wholly or partially, reversed or varied in other proceedings. In such a case, the law casts an obligation on the party, who received the benefit of such erroneous judgment to deliver back the property to the person who had lost it. "it was further held that in case where S. 144, Civil Procedure Code per se in terms does not apply to the facts of the case, the inherent power of the Court under S. 151, Civil Procedure Code would be invoked to grant restitution, in view of the well settled legal position that the provision is not exhausitive and the Court has inherent jurisdiction to grant restitution. Therefore, it is to be examined whether the order dated 1-3-1977 was passed under S. 144, Civil Procedure Code or in exercise of the inherent power.

( 5 ) IN order to come wit