ORDER
Jagannatha Shetty, J.
1. This Revision Petition is directed against the order passed by the Principal Munsiff, Mangalore in Execution Case No. 342 of 1989 dated 19-8-1989 dismissing the execution petition filed by the petitioners under Section 144 C.P.C. for restitution.
2. Briefly stated the facts are: That the respondent-owner obtained an order in C.R.P. 335 of 1989 from the High Court of Karnataka which reversed the concurrent findings of the Munsiff and the District Judge, in H.R.C. No. 144 of 1980 and C.R.P. 96 of 1984 respectively and consequently passed an order dated 7-12-1988 of eviction of the petitioner who was statutory tenant of the premises in question. The said Civil Revision Petition was heard by the Hon’ble Court without notifying the date of hearing to the petitioner. The petitioner came to know of the order of eviction passed by the High Court only when the respondent-owner filed an Execution Case 164 of 1989 and “sought police aid and permission to break open the lock for taking delivery of the schedule premises, in which the petitioner was living as a tenant. Soon thereafter the petitioner rushed to the executing Court and explained that the order that was sought to be executed was an ex-parte order and the petitioner had no opportunity to defend his case. Despite the request to grant some reasonable time to obtain necessary orders, the Court did not accede to it, and ultimately the petitioner was dispossessed from the petition schedule premises.
3. The petitioner moved the High Court to set-aside the ex parte order dated 7-12-1988 and after hearing the parties the High Court recalled the order by its order dated 5-4-1989. Since the order passed in C.R.P. was recalled the petitioner became entitled to the restoration of possession of the subject premises.
4. The petitioner filed an execution petition under Section 144 C.P.C. for re-delivery of the petition schedule premises with costs in the Principal Munsiff’s Court, Mangalore, the Court of first instance. The respondent filed his objections denying the entitlement to restoration/restitution as the recalling of the order of eviction by the High Court cannot be construed as varied or reversed in appeal or revision, or is set-aside or modified in any suit instituted for the purpose. Moreover the entire matter is seized by the High Court and the petitioner is not entitled to seek restitution.
5. The learned Munsiff, after adverting to the contentions of the parties has held that the petitioner is not entitled to restitution and dismissed the execution petition. Being aggrieved by the order of the learned Munsiff, this Revision Petition is filed.
6. The learned Counsel for the petitioners Mr. S. Shekar Shetty, has mainly urged that in view of recalling of the ex-parte order of eviction of the petitioners from the schedule premises by the High Court in its order dated 5-4-1989 the petitioners are entitled to the restoration of the premises which has been lost under the execution of the decree (eviction) passed by the High Court. In otherwords he contended that the petitioners are entitled to be placed in the same position as was previously in, irrespective of any other rights accruing in any of the parties during litigation. Further he contended that the Court has inherent powers under Section 151 C.P.C. irrespective of Section 144 C.P.C. to order restitution. On facts he submitted that the High Court while recalling the ex parte order of eviction has not indicated that the possession to be continued with the respondent-owner who had taken the possession of the premises by virtue of an ex parte order of eviction.
7. The learned Counsel for the respondent Shri U.L. Narayana Rao, strongly contended that the petitioners are not entitled to restoration, firstly, on the ground that the order passed by the High Court is not an unconditional order. Secondly, it is not a case of an order of decree not being set aside in appeal or revision by the High Court, as such Section 144 C.P.C. is inapplicable. Thirdly, he contended that the circumstances of the case do not warrant restitution or restoration of the premises to the petitioner which has already been taken possession by the respondent by executing the order of the High Court. He also urged that, from a close scrutiny of the order passed by the High Court, it is established that it is a qualified one and that it indicates of maintenance of status quo till the disposal of the pending Revision Petition in the High Court. The relevant order passed by the High Court on 5-4-1989 reads thus:
“…..After hearing the learned Advocates for the parties, I am satisfied that there has been a mistake and respondents (petitioners in this case) have not been heard. Hence, in the interest of justice, I recall the order dated 7th December 1988 and direct that this matter will be heard finally on 19th April, 1989 by the appropriate Bench.
Meanwhile, it is represented that the landlord has taken possession of the premises. By the order dated 14-3-1989, I had directed the landlord not to demolish the schedule premises.”
The contention of the learned Counsel for the respondent that the order passed by the High Court in fact to maintain status quo till the disposal of the Revision Petition is unsustainable. If the order is read as a whole with reference to subsequent order of the High Court, it indicates that the petitioner’s interest as tenants of the premises is not in any way to be jeopardised. If at all the High Court had intended that the status quo should be maintained, it would have in clear terms stated so.
8. The learned Counsel for the respondent in support of his contention cited the following decisions:
(1) STATE BANK OF SAURASHTRA v. CHITTA-RANJAN RANGANATH, and
(2) MAHIJIBHAI v. MANIBHAI,
9. The Supreme Court in the case of State Bank of Saurashtra v. Chittaranjan Ranganath has considered the question as to whether the Supreme Court can grant restitution as a Court of first instance. It has observed as follows:
“The limited question is whether this Court can grant restitution. Prior to Amendment Act, 1976 an application for restitution under Section 144 in all cases had to be made to the Court of first instance. Even since the amendment the substituted expression ‘the Court which passed the decree or order’ would as per clause (a) of the Explanation, mean the Court of first instance because the expression ‘the Court which passed the decree or order’ has been deemed to include where the decree or order has been varied or reversed in exercise of Appellate Revisional Jurisdiction, the Court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial Court, i.e., the Court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation Clause (a) of the Explanation would be attracted and an application for restitution will have to be made to the Court of first instance i.e., the Court of the Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a Court does not exist. Therefore, it would not be proper for this Court to direct restitution. However, there will be no justification for the appellant Bank to withhold the amount which was collected from the surety on a mere demand. Therefore, an application for restitution made by the surety would not lie to this Court and it would stand disposed of accordingly.”
This decision does not help the respondent. But on the contrary the principle laid down therein are apposite to the contention of the petitioner that the Court of first instance viz., the Principal Munsiff Court, Mangalore, has got jurisdiction to entertain restitution application under Section 144 C.P.C. where the order is varied by the High Court.
10. Learned Counsel for the respondent has drawn my attention to para 23 of the decision reported in Mahijibhai v. Manibhai and contended that having due regard to the facts and circumstances of the case, it is not fair to invoke Section 144 C.P.C., particularly when there is no specific order for restitution while reversing or varying the order by the High Court. The relevant passage reads as follows:
“With this background the Legislature in passing the Code of C.P. 1908 introduced Section 144 therein. The said Section is more comprehensive than Section 583 of the Code of 1882. Section 144 of the present code does not create any right of restitution. As stated by the Judicial Committee in Jai Berham v. Kedar Nath Marwari, 49 Ind. App 351 at page 355: (AIR 1922 P.C. 269 at page 271):
“It is the duty of the Court under Section 144 CPC to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said Section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.”
The Section, to avoid the earlier conflict, prescribes the procedure, defines the powers of the Court and expressly bars the maintainability of a suit in respect of a relief obtainable under this Section. The Section does not either expressly or by necessary implication change the nature of the proceedings. Its object is limited. It seeks to avoid the conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution, which till the new Procedure Code was enacted, was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or is an original application and the relief asked for. When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same; He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the Section, there is no reason why such an application shall be treated as one for the execution of the appellate decree.”
In the same Judgment the Supreme Court has observed that the Appellate Court or superior Court which set-aside or modified the decree or order could give direction providing for restitution. “Even if it did not expressly do so, it should certainly be implied, as the Appellate Court could not have intended otherwise. Setting aside of the decree itself raised the necessary implication that the parties should be restored to their original position. Be that as it may, Courts understood the provisions in that light and held that such a decree was executable as if it contained such a direction.” The crucial words of the Section “benefit by way of restitution or otherwise…for decree or order;” make it clear that under that Section the party would be entitled to restitution, though restitution was not expressly provided for by the decree or order.
11. The learned Counsel for the petitioner cited number of decisions of the Supreme Court and our Court in support of the proposition that when the decree or order is varied or reversed, or is set aside or modified either in appeal or revision by the Superior Court, restitution can be claimed. Further, he submitted that the Superior Court which varied or reversed the decree, cannot be called upon to grant relief by way of restitution. But only the Court of first instance has to grant restitution. The decisions cited by the learned Counsel are as follows:
(1) ; State Bank of Saurashtra v. Chitta-Ranjan Ranganath (2) ; Binayak Swain v. Ramesh Chandra (3) 1977(2) Kar.L.J. page 54; Ramayya Acharya v. Cyril Lesrado (4) 1965(1) Mysore Law Journal, page 786; Bhimrao Swamirao Desai v. Laxmibai and , Visalakshamma v. Balaji Agencies.
12. The Supreme Court in its decision in State Bank of Saurashtra v. Chittaranjan Ranganath which has already been cited by the respondent has clearly laid down that the execution to be done by the Court of first instance even when the decree or order is varied or reversed or is set aside or modified either in appeal or revision by the higher Courts.
In Binayak Swain v. Ramesh Chandra the Supreme Court has observed that “the principle of doctrine of restitution is on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right of restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from.” Further the Court has observed “that where in execution of an ex parte decree passed in appeal by the District Judge, the property of the Judgment debtor is sold and purchased by the decree holder himself and the decree of the District Judge is set aside by the High Court and the suit is remanded for re-hearing and fresh disposal, the Judgment debtor is under Section 144 C.P.C. entitled to restitution of his properties purchased by the decree holder subject to equities to be adjusted in favour of the decree-holder. The execution sale held under the ex parte decree which was set aside by the High Court is not validated by the passing of the subsequent decree upon fresh disposal of the suit.” It has further observed “that at the time of the application the Judgment debtor was entitled to restitution, because on that date the decree in execution of which, the properties were sold had been set aside. He is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made.”
13. In the recent decision of our High Court in I.L.R. 1966 KAR 471 it has been held that the Judgment debtor is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made…” The Court has no jurisdiction to stay restitution when once the decree pursuant to which possession was delivered had been set aside. It is well settled that the acts of Courts shall not be allowed to work injury on the suitors.”
14. In the decision of Bhimrao Swamirao Desai v. Laxmibai AND ANR., it is observed that, from what has been stated above, it is clear that after the ex parte decree was set aside, the defendants were entitled under Section 144(1) C.P.C. to ask for restitution. An application for that purpose was maintainable under that sub-section.
15. In the Full Bench decision of the Old Mysore Chief Court reported in 1923 Mysore C.C.R. 180, Puttanna v. Puttachari it is stated thus:
“It may be that the defendant’s failure to appear is often not due to any fault of the plaintiff; the defendant may miss a train, or meet with an accident, or misinformed by an official of the Court; but even so, there does not seem to me to be any reason why he should suffer when the Court can put the parties back in the position which they would have occupied but for the decree. The decree is set aside because the Court would not have made it without hearing the defendant had it known all the circumstances, and the true view seems to be that once set aside the decree not only is of no authority to support further execution, but cannot be relied on in support of acts done under it before it was set aside. It is anulled and must be dealt with as if it never had any force at any time, at any rate as between the plaintiff and the defendant. I think therefore that Section 144 is applicable and should be applied to the case before us….”
16. I have given above the gist of the different decisions of the Supreme Court and our High Court. Now, I consider the principles which should be applied in considering the provisions of Section 144 C.P.C. As already stated there is no dispute as to the dispossession of the petitioner from the schedule premises by virtue of the order passed by the High Court in C.R.P. 335 of 1989 and it is an admitted fact that the said order of the High Court was reversed by recalling it by its order dated 5-4-1989. It is also an admitted fact that the petitioner had filed an Execution Petition under Section 144 C.P.C. for restitution. None of the decisions cited by the respondent’s Counsel support the case of the respondent that in the facts and circumstances, the variation of the order being conditional and unless it further varied or reversed by the superior Court no claim of restitution could be made. As already noticed variation of the order by the High Court dated 5-4-1989 is not a conditional one. That apart, ex parte orders have been set aside, which has resulted in vacating the eviction order passed earlier. That being so, the petitioner-tenant, who was dispossessed by virtue of the earlier order, is entitled to claim restitution. One of the first and the foremost duties of all Courts is to take care that act of the Court does no injury to any suitors and expression “Act of the Court” is used, it does not mean act of primary Court or of any Intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction, over the matter up to the Highest Court which disposes of the case. Superior Court which vary or reverse the decree or order cannot be called upon to grant relief by way of restitution and it is not even necessary for such superior Court to include in the Judgment of direction ordering restitution. To clarify the position 1976 Amendment Act has substituted the Explanation – defining expression “Court of first instance.” Clause (a) of Section 144 C.P.C. provides that where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, that the Court of first instance to which application for restitution to be made and not to the Superior Court.
17. The petitioner had after reversal of its own order in revision by the High Court, rightly moved the application before the Court of first instance viz., the Court of the Principal Munsiff, Mangalore, to claim restitution. But the learned Munsiff by wrong assumption has held that variation or reversal of the order by recalling the ex parte order passed earlier for eviction of the petitioner-tenant cannot be construed as varying or reversing the order of eviction passed. The ex parte order of the High Court has been set aside by it by recalling the order on 5-4-1989.
18. Upon consideration of the above on valid and a careful examination and the language employed in Section 144 C.P.C. that the view taken by the Principal Munsiff is wrong and therefore it is liable to be set aside. Accordingly it is set aside.
19. In the result this Revision Petition is allowed and the order passed by the Principal Munsiff, Mangalore in Execution Case No. 342 of 1989 and that of the District Judge in HRC Case No. 144 of 1980 and C.R.P. 96 of 1984 are set aside and the execution petition is restored on the file of the Principal Munsiff, Mangalore, and I direct the restitution to be granted in accordance with law. No costs.