ORDER:

Heard Sri Narasimha Rao Gudiseva, learned counsel for the petitioner.

2. Notice sent to the 1st respondent/Decree-holder came with an endorsement ‘unclaimed’ as such, the same is required to considered as deemed service. In the present revision, preferred under Section 115 of the Code of Civil Procedure, challenge is to the order dated 06.10.2023 passed by the Court of the learned Principal District Judge Krishna at Machilipatnam in E.A.No.1448 of 2021 in E.P.No.10 of 2019 in O.S.No.04 of 2015.

3. The petitioner herein happened to be the Judgment-debtor in the aforementioned Execution Proceedings. The suit in O.S.No.04 of 2015 instituted by the 1st respondent herein for specific performance of contract of sale came to be initially decreed against the petitioner ex-parte on 07.07.2015. Seeking enforcement of the said ex-parte decree, the 1st respondent filed E.P.No.10 of 2019 and admittedly in the said E.P. possession was delivered to the 1st respondent on 18.05.2019. On the application filed by the petitioner under the provisions of Order IX Rule 13 of the Code of Civil Procedure, the said ex-parte decree came to be set aside on 07.07.2015.

4. In the above background, seeking restoration of possession of the schedule property, the petitioner herein filed the instant E.A.No.1448 of 2021 under the provisions of Section 144 r/w Section 151 of Code of Civil Procedure. The learned Principal District Judge, Krishna at Machilipatnam vide order dated 06.10.2023 dismissed the said application for restoration on the ground that the application filed for restoration before the Execution Court is not maintainable as the Court which passed the decree was the Court of VI Additional District Judge. During the course of arguments, it is brought to the notice of this Court by the learned counsel for the petitioner that O.S.No.4 of 2015 instituted by the 1st respondent herein came to be dismissed on

20.03.2024.

5. In this context, it would be relevant to refer to the provisions of Section 144 of the Code of Civil Procedure, which reads as follows:- “Where and in so far as a decree 1[or an order] is 2[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 may be, place the parties in the position which they would have occupied but for such decree 1[or order] or 3[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

1 Ins. by Act 66 of 1956, sec. 13 (w.e.f. 1-1-1957).

2 Subs. by Act 104 of 1976, sec. 48, for “varied or reversed, the Court of first instance” (w.e.f. 1-2-1977).

3 Subs. by Act 104 of 1976, sec. 48, for “such part thereof as has been varied or reversed” (w.e.f. 1-2-1977)

mesne profits , which are properly 4[consequential on such variation, reversal, setting aside or modification of the decree or order].

[Explanation- For the purposes of sub-section (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 application for restitution under this section, would have jurisdiction to try such suit.]

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which c