When an ex parte decree is set aside, the court must restore the party to their original position under Section 144 CPC by identifying the property actually dispossessed through execution records (bailiff's report and panchanama), rather than dismissing the claim based on descriptive discrepancies in the petition.

ORDER

This Civil Revision Petition is filed questioning the legality and correctness of the order dated 23.11.2024 passed in I.A.No.476 of 2022 in O.S.No.683 of 2018 by the learned VII Additional Civil Judge (Senior Division) Visakhapatnam.

The petitioner is the defendant and respondent is the plaintiff in O.S.No.683 of 2018 filed for eviction and for recovery of vacant possession.

The facts that led to filing of the Civil Revision petition, in brief, are that

(i) The respondent filed suit vide O.S.No.683 of 2018 for eviction. The petitioner was set ex parte in the said suit. In pursuance of the said ex parte decree, an execution petition vide E.P.No.8 of 2021 was filed Under Order-21, Rule-36 CPC for delivery of the petition schedule property and the said Execution Petition was disposed of on 15.03.2021 recording delivery of the property effected on 03.02.2021. Subsequently, the ex parte decree passed in the suit was set aside vide order 23.07.2021 passed in I.A.No.52 of 2021. Pursuantly, the defendant filed the application under Section 144, read with Section 151 of Code of Civil procedure to order restitution directing the plaintiff to restore possession of the property to the defendant.

(ii) The plaintiff resisted the relief contending that since the decree in the suit has not been varied or modified by way of appeal or revision and hence Section 144 of Code of Civil Procedure has no application to the facts of the case on hand and further under Section 144 of CPC the property is to be restored to the property owner and the defendant not being the owner cannot claim restitution.

(iii) The learned trial Judge upon considering the submissions made by learned counsel for the parties and upon perusing the material available on record, dismissed the petition.

(iv) The said dismissal order has been assailed in this Civil Revision Petition.

Heard Smt.K.Pallavi, learned counsel for the Revision Petitioner, and Sri K.Sandeep, learned counsel for respondent.

Smt.K.Pallavi, learned counsel for the petitioner, while reiterating the contents of the affidavit filed in support of the petition before the trial Court and grounds of Revision would contend that since possession of the property was taken from the petitioner in execution proceedings initiated based on ex parte decree, the possession of the property shall be restored back to the petitioner under Section 144 of CPC, as and when the said ex parte decree was set aside. She would further contend that the learned trial Judge ought not to have dismissed the petition on the mere ground that suit schedule property and the property described in the restoration petition are different, instead the learned trial Judge ought to have ordered for restoration of the property that was taken delivery of in the execution petition. She would further contend that under the guise of ex parte decree, the petition schedule property was taken possession from the petitioner and the respondent/defendant is estopped from contending that petition schedule and plaint schedule are different and distinct. She would further contend that the learned trial Judge upon erroneous view that there is no consensus-ad-idem between the parties regarding the property to be restored dismissed the petition, instead of ordering restitution of the property taken actual delivery of from the petitioner. She would further contend that the order passed by the learned trial Judge is in ignorance of the mandatory provisions and the same has to be set aside. Accordingly, prayed to allow the Civil Revision Petition ordering restoration of the property.

On the other hand, Sri K.Sandeep, learned counsel for respondent, would contend that restoration of the property should only be in favour of the original owner of the property and the petitioner not being the original owner of the property is not entitled to seek restoration under Section 144 of the CPC. He would further contend that since the decree has not been varied or modifie