IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/11/2003
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
C.M.S.A.No.8 of 1994
1.Kandan (died)
2.Kandayee
3.Palaniammal
4.Perumayee
5.Saraswathi
6.Arukkani
7.Arumugham .. Appellants
(Appellants 2 to 7 brought on
record by order dated 28.11.2003
made in C.M.P.No.15081 of 2003)
-Vs-
K.Periaswamy .. Respondent
PRAYER: Against the judgment and decree dated 12.3.1993 passed by the
Subordinate Judge, Sankari in C.M.A.No.34 of 1991 on appeal from the judgment
and decree in R.E.A.No.143 of 1986 in R.E.P.No.89 of 1979 in O.S.No.408 of
1978,d ated 11.9.1989.
!For Appellants : Mr.S.P.Subramaniam
^For Respondent : Mr.V.Radhakrishnan
:JUDGMENT
Heard Mr.S.P.Subramaniam, learned counsel for the appellants and
Mr.V.Radhakrishnan, learned counsel for the respondent.
2.1. The Appellants 2 to 7 are the legal representatives of the first
appellant, who was the defendant in the suit O.S.No.408 of 1978 on the file of
the District Munsif Court, Sankari laid by one Arthanari Goundar for recovery
of a sum of Rs.795.50.
2.2. Pending the suit O.S.No.408 of 1978, the plaintiff, Arthanari
Goundar also obtained an order of attachment before judgment in I.A. No.932
of 1978 and the same was made absolute by order dated 22.8.1978, setting the
the first appellant herein exparte. Thereafter, the exparte decree was passed
in O.S.No.408 of 1978 on 29.8.1978. The plaintiff, Arthanari Goundar filed
E.P.No.89 of 1979 for recovery of Rs.81 6.25 and Rs.152.90 by sale of 1.75
Acres of land, and the property of the first appellant herein was ordered to
be sold on 7.6.1979, by setting the first appellant herein exparte, and
ultimately, the property was sold for a sum of Rs.1,400/- to the respondent
herein on 7.6.19 79. Concededly, the respondent herein is the son-in-law of
the plaintiff, Arthanari Gounder. Thereafter, the sale was confirmed by an
order dated 17.8.1979 and possession was also delivered to the respondent
herein, viz., auction purchaser on 8.3.1980.
2.3. In the meanwhile, the first appellant filed I.A.No.525 of 1980
to set aside the exparte decree dated 29.8.1978 made in O.S.No.408 of 1978 and
the same was transferred to the file of the District Munsif Court,
Thiruchengode and renumbered as I.A.No.115 of 1981. The said I.A. was
allowed by order dated 8.3.1982, and the suit was restored and numbered as
O.S.No.192 of 1982 on the file of the District Munsif Court, Thiruchengode.
2.4. In view of the restoration of the suit, the plaintiff, Arthanari
Gounder filed I.A.No.523 of 1982 to set aside the order passed in I.A.No.115
of 1981 dated 8.3.1982, and the first appellant filed R.E. A.No.143 of 1986
under Section 144 of the Code of Civil Procedure for restitution of his
property. However, I.A.No.523 of 1982 was dismissed by order dated 2.9.1985
and the same was confirmed by an order of this Court dated 1.11.1985 in
C.R.P.No.3825 of 1985.
2.5. Since no steps were taken by the legal representatives of the
deceased plaintiff, the suit O.S.No.192 of 1982, was dismissed as abated by
order dated 29.4.1986 of the learned District Munsif, Thiruchengode. The
application, R.E.A.No.143 of 1986, preferred by the first appellant herein was
also dismissed on 16.11.1987 for non appearance of the first appellant herein.
Thereafter, by an order dated 23.11.19 87 made in R.E.A.No.382 of 1987, the
order dated 16.11.1987 made in R.E.A.No.143 of 1986 was set aside and
consequently, R.E.A.No.143 of 1986 was restored. However, R.E.A.No.143 of
1986 preferred by the first appellant herein under Section 144 of the Code of
Civil Procedure for restitution of his property was dismissed by order dated
11.9.198 9 holding that the respondent/auction purchaser is bonafide purchaser
and the same was confirmed, on appeal, in C.M.A.No.34 of 1991 by judgment and
decree dated 12.3.1993. Hence, the present civil miscellaneous second appeal.
3. Mr.S.P.Subramaniam, learned counsel for the appellants contends
that, under the facts and circumstances of case, particularly in view
of the undisputed relationship between the respondent/auction purchaser, who
is the son-in-law of the plaintiff in O.S.No.192 of 1982, the finding of the
Courts below that the respondent is a bonafide purchaser is perverse and
illegal apparently on the face of the records and in any event, in view of the
order of restoration of the suit dated 8.3.1982, which had become final as per
the order of this Court dated 1.11.1985 in C.R.P.No.3825 of 1985, the
appellants are entitled for restitution of their property as per Section 144
of the Code of Civil Procedure Code.
4. Mr.V.Radhakrishnan, learned counsel for the respondent contends
that, notwithstanding the relationship of the respondent/auction purchaser as
son-in-law of the plaintiff, the respondent is a bonafide purchaser and
therefore, the property cannot be restored.
5. I have given careful consideration to the submissions of both
sides.
6. The substantial question of law that arises for my consideration
in this appeal is “whether the appellants are entitled for restoration of the
property under Section 144 of the Code of Civil Procedure in view of the
restoration of the suit by order dated 8.3.1982 in I.A. No.115 of 1981, which
also got confirmed by an order of this Court dated 1.11.1985 in C.R.P.No.3825
of 1985?”
7. In this context, it is apt to refer Section 144 of the Code of
Civil Procedure, which reads as under:
“Section: 144 – Application for restitution:
(1) Where and in so far as a decree or an order is 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 or order or 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 mense profits, which are properly consequential on such
variation, reversal, setting aside or modification or the decree or order.
Explanation: For the purpose 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) whether 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 could be obtained by application under sub-section (1).”
8.1. Under Section 144 of the Code of Civil Procedure, the doctrine
of restitution contemplates that where a property was received by a
decree-holder in execution of a decree which, on appeal, either in whole or in
part thereof, is subsequently reversed or varied, the court is empowered to
restore to the judgment-debtor what has been lost to him in execution of the
decree and it is the consequence of the erroneous decree. The restitution is
consequential to the variation or reversal of the decree or on its being
modified or set aside. The condition precedent for restitution, therefore, is
that the decree of the trial court must be reversed or varied in appeal or
otherwise. The word consequentially lays emphasis on the obligation on the
party to the suit or proceedings which received the benefit of the erroneous
decree to make restitution to the other party for what he has lost. The
court, therefore, is bound to restore the parties, as far as they can be, to
the same position they were at the time when the court by its erroneous action
had displaced them from it. Equally where a sum of money was recovered in
execution by a decree which was subsequently reversed or varied, the
judgment-debtor is entitled to get back not only the sum recovered but also
the interest thereon or damages or compensation for the period that the amount
had been retained by him. The reason being that the person who has taken the
money improperly from the judgment-debtor has to restitute to him the amount
as a corollary with interest during the time that the money has been withheld
from him. The owner or the person interested in the land when recovered the
compensation under the award and decree which was reversed, varied or modified
on appeal, the court is empowered under Section 144 Code of Civil Procedure to
restitute the amount with interest or quantified damages or by way of
compensation, vide Kartar Singh v. State of Punjab, (1995) 4 SCC 101.
8.2. The doctrine of restitution is based upon the high cardinal
principle that the acts of the court should not be allowed to work in injury
or injustice to the suitors. Section 144 of the Code of Civil Procedure,
therefore, contemplates restitution in a case where property has been received
by the decree-holder under the decree, which was subsequently either reversed
or varied wholly or partly in those proceedings or other proceedings. In
those set of circumstances, law raised an obligation on the party that
received the benefit of such reversed judgment to restitute the property to
the person who had lost it, vide Neelathupara Kummi Seethi Koya Phangal v.
Montharapalla Padippua Attakoya, 1994 Supp (3) SCC 760.
8.3. While disposing an application filed under Section 144 of the
Code of Civil Procedure, the burden, therefore, lies on the Court to render
complete justice but not merely disposing the application on technical
grounds, because the Courts are inclined to undo the ill effects of the wrong
doer by passing an order to meet the ends of justice instead of defeating the
justice. A reading of Section 144 of the Code of Civil Procedure makes it
clear that it would apply where the judgment and decree itself was reversed
and set aside.
9. In the instant case, it is not in dispute that the very decree
made in O.S.No.408 of 1978 was set aside in view of the restoration of the
suit. In such case, the Court has got a duty to enforce its obligation to
restitute the property to the applicant who was deprived of his possession
based on the decree or order, inasmuch as it is a settled law that whenever an
exparte decree or order is set aside, the party who was dispossessed or
evicted in pursuance of such exparte decree or order is entitled to
restitution forthwith, in spite of the fact that, ultimately, on merits, he
might loose the cause; and that whenever an exparte decree or order is set
aside, no person who has entered into possession through the party obtaining
the exparte decree or order, can resist or obstruct restitution on the ground
that he is a bonafide transferee.
10. Concededly, the respondent is the son-in-law of the decree
holder, who obtained the exparte decree, but not a stranger. Hence, the owed
object of the legislature enshrined under Section 144 of the Code of Civil
Procedure has been miserably overlooked by the Courts below in dismissing the
application filed by the first appellant in R.E.A.No.143 of 1986, as confirmed
by order dated 12.3.1993 passed by the learned Subordinate Judge, Sankarai in
C.M.A.No.34 of 1991.
11. For the reasons aforesaid, answering the substantial question of
law in favour of the appellants, the appeal is allowed, the learned District
Munsif, Sankari is
directed to restore the possession to the appellants, however without
prejudice to the right of the respondent to workout his right for claiming the
sale amount from the legal representatives of the plaintiff, Arthanari
Gounder.
In the result, the appeal is allowed. No costs.
Index: Yes
Internet:Yes
sasi
To:
1. The District Munsif
Sankari.
2. The Subordinate Judge
Sankari.