JUDGMENT
Baharul Islam, J.
1. These two Miscellaneous Second Appeals which arise out of the same impugned order, are directed against the order of the learned Assistant District Judge No. 1, Gauhati, made in his appellate jurisdiction against an order passed by the learned Munsiff No. 2 of Gauhati on an application under Section 144 of the Civil P. C. The points of law involved are also common. So this order of mine will dispose of both of them.
2. Radha Mohan Goenka was the plaintiff in the original suit. He brought the suit No. 61 of 1971 against the sole defendant, Ram Chandra Goala, for declaration of title and recovery of khas possession of the suit land in the court of Munsiff No. 1 at Gauhati. The suit was subsequently transferred to the Court of the Munsiff No. 2, Gauhati, and it was numbered as Title Suit No. 15 of 1971. The plaintiff obtained an ex parte decree against the defendant in the suit on 13-11-1971. The plaintiff-decree-holder executed the decree and evicted the defendant on 3-1-1973 by demolishing his houses standing on the suit land. On 6-1-1973 the defendant filed an application under Order 9, Rule 13 of the Code of Civil Procedure and the application was registered as Misc. Case No. 2 of 1973 in the court of the Munsiff No. 1, later on re-numbered as Misc. Case No. 20 of 1974 in the court of the Munsiff No. 2. In that application it was alleged by the defendant that no summons was served on him, he was kept in complete darkness about the suit and that the decree had been obtained by fraud. The plaintiff filed objection. After hearing the parties the learned Munsiff rejected the application under Section 144 of the Civil P. C. but on appeal the learned Assistant District Judge set aside the order of the learned Munsiff and allowed the application under Section 144. Hence this Second Appeal.
3. A few more facts may be stated for the purpose of appreciation of the arguments advanced by the learned counsel of the parties. The application under Order 9, Rule 13 was filed on 6-1-1973 and it was disposed of by the Munsiff on 17-7-1974. In the meantime the plaintiff decree-holder sold the land to Kamal Chandra Dutta, appellant in M. A. (S) 17/76, by a registered deed for an amount of Rs. 12,000/-. These are admitted facts.
4. Mr. P. Choudhury, learned counsel appearing for the appellants submits that the application under Section 144 of the Civil P. C. was incompetent. His second submission is that in any case appellant Kamal Chandra Dutta was a bona fide purchaser of the property for a valuable consideration and as such no relief under Section 144, Civil P. C. can be granted against him.
Mr. B. K. Goswami, learned counsel appearing for Kamal Chandra Dutta supplements the submission made by Mr. P, Choudhury and draws my particular attention to the expression “so far as may be, place the parties in the position which they would have occupied but for such a decree in Section 144, and submits that after the purchase of the land for valuable consideration, his client has already constructed an R. C. C. building spending a considerable amount of money; while the defendant was staying on the land in ordinary thatched houses. It is not possible on the part of the court, he submits, to place the parties in the same position as the original plaintiff and the defendant were before the execution of the ex parte decree.
5. It is admitted by counsel of the parties that Section 144 of the Civil P. C. before its amendment in 1976 applies to the facts of the present case. Section 144 before the amendment read :
“144. Application for restitution. — (1) Where and in so far as a decree or an order is varied or reversed, the Court of first instance 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 or order or such part thereof as has been varied or reversed; 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 mesne profits, which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).”
A perusal of Sub-sections (1) and (2) of Section 144 together shows that the provision of Sub-section (1) is mandatory, inasmuch as the remedy of the affected party by a suit is barred and if ultimately a decree obtained against the pe-titoner under Section 144 is varied or reversed, he cannot get any relief by a suit and as such if he is entitled to any relief under this section, he must get it by an application under that section.
6. There is conflict of opinions on the meaning of the words “varied or reversed”. Mr. Choudhury submits on the authority of a number of decisions cited by him that ‘varied’ or ‘reversed’ means varied or reversed by a superior Court, namely, an appellate court or a revi-sional court. He submits that the pointer to this interpretation is the expression ‘the Court of the first instance’.” On the other hand, Mr. Y. K. Phukan learned counsel appearing for the respondent submits also on the authority of a number of cases that ‘varied’ or ‘reversed’ can be effected not necessarily by an appellate or a revisional court but also by any other Court or even by the same Court.
It is true that a decree can be varied or reversed by an appellate court or by a revisional court. It is equally possible that a decree may also be varied or reversed even by a different court of competent jurisdiction as for example, if a decree was obtained by a party, say, by fraud, and the decree is cancelled by the same Court as passed the earlier decree, or by a different court of competent jurisdiction. It is also possible that if a decree is passed by a Court, the aggrieved party files an application for review and the Court reviews the decree, it may reverse or modify it. In such cases, in my opinion, the Court of the first instance will mean the Court that passed the decree which was ‘reversed’ or ‘varied’ either by itself in review or by a Court of appeal or by a Court of revision or by a different court that cancels the decree. The meaning of the expression, “the court of first instance” is first instance as compared to an appellate court or the revisional court or a subsequent court or the same court that varies or reverses the decree later. In my opinion, therefore, an application under Section 144 is maintainble for restitution in the same court if that court legally reverses its own earlier decree.
7. The view I have taken gets supports from a Full Bench of the Allahabad High Court reported in AIR 1948 All 252. It has held :–
“The words ‘varied’ or ‘reversed’ though commonly applicable to a case where a decree has been set aside on appeal or revision by a superior Court, can be applied to a case where the decree has been set aside or varied by some other Court if that other Court under the exceptional circumstances such as where a decree has been obtained by fraud or has been obtained against a person who was not properly represented or has been passed by a Court that had no jurisdiction; had the right to vary or set aside the decree. It cannot be said that the words “Court of first instance” contemplate that the variation or reversal of the decree is made by a superior Court. These words only make it clear that the application for restitution should be made to the first Court and not to any of the superior Courts.”
The Bombay High Court also in the case reported in AIR 1968 Bom 57, was of the same view. The learned Judge, Justice Wagle, in that decision held :–
“The expression in Section 144 ‘the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause…..”has brought about this difference of opinion; according to one view the section does not apply unless the decree is varied or reversed by a Court superior to the one which passed it; according to the other the section applied in all cases where the decree is varied, reserved or superseded. The addition of the expression ‘the Court of first instance shall’ could be explained on a different hypothesis. The application under Section 144 is not an application in execution. The question then arises as to which Court has to consider the grant of relief sought under Section 144. If it were an application in execution, Section 37(a) and Section 38 of the Civil P. C. provide for the institution of such an application for execution, in the Court of first instance. It may, therefore, be that the addition of the expression ‘the Court of first instance shall’ was intended to provide a forum for the institution of an application under Section 144. If this interpretation is put upon the expression ‘the Court of first instance shall’ then there is no vagueness in the section and it would provide for every case of a reversal or variation including the reversal by a superior Court, by the same Court in the same proceedings or by a different Court in different proceedings. In this view of things with the utmost respect I am unable to agree with the view taken by Sir George Rankin that the reversal or variation could only refer to an order by a superior Court in the same proceeding.”
As already observed by me above, if an affected person can make out his case that he was illegally or in violation of certain law dispossessed from a certain property and proves that he is entitled to regain its possession, and if he can be put to possession in view of an order passed by a superior court, there does not appear to be any valid reason as to why he cannot be brought to the same position if the earlier decree which has been varied or reversed by the same Court or a different Court. If this interpretation be not given, the affected person will have no remedy, inasmuch as, a suit is barred as observed earlier. It therefore stands to reason that a liberal meaning should be given to the expression that ‘varied’ or ‘reversed’ means varied or reversed by a Court itself or by a different Court oi competent jurisdiction as well as by a superior or revisional court.
8. Mr. Choudhury has cited the following decisions in support of his contention :
AIR 1931 Cal 14; AIR 1944 Lah 165; AIR 1937 All 232 and AIR 1937 Bom 173.
Head-note (a) of the decision reported in AIR 1931 Cal 14 reads :
“Section 144 only applies where a decree is ‘varied or reversed’ and apart altogether from the wording which im-mediately succeeds that expression ‘the Court of first instance shall’ and so forth, it is perfectly certain that a decree is only varied or reversed by a superior Court on appeal or on revision or it may be. on reference. But, if a decree is set aside either by a proceeding in the suit itself or if it is set aside by a decree in another suit altogether or if, without being set aside by such a decree, it is superseded — these are matters which are not within the words of the section.”
A learned single Judge of the Lahore High Court in AIR 1944 Lah 165 has observed :
“Where the decree has not been varied or reversed by a Court of appeal but in a separate suit, an application for restitution under Section 144 is not corn-potent.”
A learned single Judge of the Allahabad High Court in AIR 1937 All 232 has held :
‘”In order to obtain restitution under Section 144, the applicant must establish that the decree under which he was compelled to part with his property has been varied or reversed by a Court which had jurisdiction to vary or reverse the decree. The use of the phrase “Court of first instance” contemplates that the variation or reversal of the decree is made by a suuerior Court. The section clearly applies where a decree has been reversed or varied upon appeal, revision or by a review. Where the consequences of a decree have been affected by a subsequent decree passed in another suit, there has been no variation or reversal of the earlier decree within the meaning of this section. Courts of equal jurisdictions cannot reverse or vary such other’s decrees, although in a suit, a Court might hold that an earlier decree passed by another Court is not binding upon the plaintiff before it by reason of fraud, collusion or other cause. Section 144 contemplates the reversal or variation of a decree by a Court competent to do so.”
In my opinion the above decision cited by Mr. Choudhury have taken too technical a view of the words, ‘varied’ and ‘reversed’ and have not laid down the correct proposition of law.
The decision of the Bombay High Court in AIR 1937 Bom 173, cited by Mr. Choudhury does not support his contention, for, the learned single Judge of -the High Court has held :
“The reversal or variation of the decree must be in the same proceedings between the parties — it may be as the result of a successful appeal or an application for review or in any other manner provided for by the Code — and that the decree must be between the parties to the record and the reversal or modification of it must be in favour of the party applying or someone claiming under him.”
9. The only other submission made by Mr. Choudhury is that in any case Kamal Chandra was a bona fide purchaser and therefore the application under Section 144 won’t be maintainble as against Kamal. He has cited a number of authorities reported in 19 Cal 29, AIR 1948 All 28, (1887-88) 15 Ind App 12 (PC), (1885-86) 13 Ind App 106 (PC), AIR 1954 Pat 36 and AIR 1951 All 823 and a decision of this Court reported in Assam LR (1971) Assam 286.
These decisions speak about the protection available to a bona fide purchaser but in my opinion the doctrine of bona fide purchase is not applicable to such a case. Assuming for the sake of argument that the principle of bona fide purchase for valuable consideration ingrained in Section 41 of the T. P. Act does apply to the facts of the case in hand, let us proceed to examine whether Kamal Chandra is a bona fide purchaser. Whether a person is a bona fide purchaser or not, is a question of fact. The learned appellate Court below has found that Kamal Chandra is not a bona fide purchaser. This finding is a finding of facts and even if it be erroneous, it cannot be interfered with in a second appeal.
I have already referred to the dates on which the application under Order 9, Rule 13 was made and on which it was disposed of and that the sale took place in between. It is not Kamal’s case that he was not aware of the proceeding under Order 9, Rule 13. If he knew about the application under Order 9, Rule 13, he shall be presumed to know the possibility of the ex parte decree being set aside and further the possibility that the application under Section 144 being allowed the judgment-debtor defendant might be restored to possession. He, therefore ought to have waited till the disposal of the application under Order 9, Rule 13. He did not care to do so. On the contrary he not only purchased the land but also constructed the house taking all possible risks. From these facts and circumstances, no inference can be drawn that his purchase was bona fide. The inference is that he is not a bona fide purchaser. The decisions cited by Mr. Choudhury therefore do not help Kamal Chandra.
10. Now to turn to the submission of Mr. B. K. Goswami. His submission is that if the thatched houses belonging to the defendant were available for his occupation, he could perhaps be restituted to the earlier position; but after the execution of the decree, the thatched houses having been demolished and Kamal Chandra having constructed a valuable R. C. C. building, restitution is not possible. This submission, in my opinion, is not sustainable for the reason that if it be accepted, in all cases an application under Section 144 can be frustrated by a mala fide and resourceful purchaser. What is intended by Section 144 is that the restitution as far as possible be granted, meaning that if the defendant judgment debtor was in possession of the land, he will be put in possession. The section has not stated that the original house which has been demolished, must also be restored. In execution of a decree even an R. C. C. building also can be demolished. The whole idea underlying Section 144 is that as far as possible the parties are to be restored to the original position, that is to say, if a person is dispossessed, he will be put to possession. In my opinion, therefore, the submission of the learned counsel has no merit.
11. As a result of the foregoing discussions these appeals are dismissed. I, however, leave the parties to bear their own costs.
