The judgment emphasized the principles of unjust enrichment and the inherent power of every court to order restitution, but held that the petitioners must provide evidence of unjust enrichment before the court can pass an order directing restitution.

Heard Mr. D. R. Choudhury, learned counsel appearing for the petitioner as well as Mr. Samarjit Bhattacharji, learned counsel appearing for the respondents.

2. By this application filed under Article 227 of the Constitution of India, the petitioner has questioned the legality of the order dated 03.03.2015 passed by the executing court (the Civil Judge, Senior Division, West Tripura, Agartala, Court No.1) in Misc.(J) 09 of 2014. The petitioners herein filed an application under Section 144 read with Section 151 of CPC for restitution of the land which was not part of the decreetal land but taken into possession by the decree holders, the respondents herein by the aid of the bailiff of the court. According to the petitioners, the Schedule-C land measuring 0.009 acre is also recorded under plot No.2297. The plot No.2297 is a large plot. The petitioners, the judgment-debtors, have their title over some part of the land pertained to plot No. 2297. But, that part which was not included in the decree has also been taken into possession by the decree-holders and as a result, the petitioners filed two applications, one under Section 144 read with Section 151 of the CPC for restitution of their possession of the land which was not part of the decreetal land and another under order 26, Rule 10A of the CPC for purpose of survey.

3. Mr. Choudhury, learned counsel appearing for the petitioners has succinctly submitted that without properly appreciating the averments made in the said petition filed under Section 144 read with Section 151 of the CPC, being Misc.(J) 09 of 2014, the executing court has rejected the petition by the impugned order dated 03.03.2015. The execution case on the basis of the report of the bailiff was disposed of on 06.08.2014. The report of the bailiff was accepted by the court and there had been no protest against the said report. However, from the application filed under Section 144 read with Section 151 of the CPC, it appears that on 25.07.2014 the bailiff of the execution court without taking any assistance from any Survey Commissioner or without taking any measurement of the land as described in the decree, in particular in the schedules B, C and D had taken possession having been solely guided by the decree holders. On taking possession, the bailiff posted the pillars over the land, which is much beyond the decreetal land. It has been further stated that the bailiff of the court is not an competent person to survey and as such, he did not even try to survey the plot according to the decree. A specific statement has been made in the para 7 of that petition which is as under:

“That, by such improper execution made by the Bailif of the Court by partial and wrong instruction of the Plaintif D.H. O.P. and her husband recovered more than 0.009 acres i.e. ½ (half) Gandas of land as indicated by posting pillars by the Bailif of the Ld. Court.”

To support the proposition, the petitioners filed one parallel application under Order 26 Rule 10A of the CPC for appointing a Survey Commissioner to locate such illegality as committed during execution of the decree.

4. Mr. Choudhury, learned counsel has seriously urged that the land beyond the decree as taken in possession by the bailiff is liable to be restituted by the execution court inasmuch as power of restitution lies with every court as inherent to it. Mr. Choudhury, learned counsel has referred a decision of the apex court in Mrs. Kavita Trehan & Anr. vs. Balsara Hygiene Products Ltd., reported in AIR 1995 SC 441, wherein the apex court has enunciated that the law of restitution encompasses all claims founded upon the principle of unjust enrichment. Restitutionary claims are to be found in equity as well as at law. Section 144 of the C.P.C. incorporates only a part of the general law of restitution. It is not exhaustive. The jurisdiction to make restitution is inherent in every Court and can be exercised whenever the justice so demands. It will be exercised under in