JUDGMENT
1. This CRP is directed against an order passed on an application for restitution filed under Section 144 CPC.
2. The petitioners herein are the legal representatives of late P. Muthuswamy who was the sole plaintiff in OS No.28 of 1994 on the file of the Court of the Principal District Munsif, Hyderabad, East and North, Rangareddy District, whereas the respondents are the legal representatives of late Janakiram who was the sole defendant in the said suit. The said suit was filed for eviction of the defendant from the suit schedule property which is a building situate in Malkajgiri, Secunderabad, on the allegations that the plaintiff purchased the suit property from the original owner B. Sampatlal by and under a registered sale deed dated 15-6-1983, that the defendant, who was then in occupation of the suit property as a tenant, was attorned to the plaintiff and that the defendant failed to vacate the same inspite of a notice to quit. The suit was resisted by the defendant denying and disputing the title of the plaintiff and claiming that Sampatlal sold the suit house to the defendant on 31-5-1982 for a total consideration of Rs.4,000/- and that the civil Court has no jurisdiction to entertain the suit.
3. The trial Court, while upholding the title of the plaintiff and holding that there was relationship of landlord and
tenant and the Court had jurisdiction to entertain the suit, dismissed it on the sole ground that there was no valid quit notice as per Section 106 of the Transfer of Property Act.
4. On appeal, the learned District
Judge, Rangareddi District, by judgment and decree dated 29-9-1992 in AS No.43 of 1990 reversed the judgment of the trial Court and decreed the suit holding that no notice under Section 106 of the Transfer of Property Act was required as the defendant denied the title of the plaintiff and set up title in himself but failed to prove the same.
5. The defendant carried the matter in second appeal to this Court in Second Appeal No.523 of 1992. The High Court granted conditional stay of the execution of the decree on condition that the defendant deposits all the arrears of rent due within a stipulated time. As the defendant failed to comply with the said condition, the stay got vacated and in execution of the decree of the lower appellate Court, possession of the suit property was taken by the plaintiff. Ultimately by judgment and decree dated 8-3-1996 Second Appeal No.523 of 1992 was allowed and the decree of the lower appellate Court was set aside and the suit was dismissed holding that the civil Court had no jurisdiction to entertain the suit since the suit building was within the municipal limits and it was, therefore, governed by the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. In view of the reversal of the decree by the High Court in Second Appeal, the respondents herein, who came on record as the legal representatives of the deceased defendant/appellant filed the instant application seeking re-delivery of possession of the suit property to them by way of restitution.
6. The application for restitution was resisted by the plaintiff, inter alia, on grounds
that the application for restitution was not maintainable and the Court had no jurisdiction to entertain the application in view of Explanation (c) to sub-section (1) of Section 144 CPC that the High Court allowed the second appeal on technical grounds but did not disturb the other findings of the lower appellate Court, that the suit building is no longer in existence as it became dilapidated and collapsed and as such restitution is not possible and, in any case, it is highly unjust and inequitable to order restitution as the applicants did not suffer any loss and on the other hand, the applicants failed to comply with the conditional order passed by the High Court and did not pay any rents whatsoever from 1983 onwards. The lower Court, however, by the impugned order dated 10-3-1997, overruled the said objections and allowed the application for restitution and ordered delivery of possession of the suit property to the applicants/respondents herein.
7. Sri A. Bitchaiah, the learned Counsel for the petitioners assailed the order of the lower Court on the following grounds:
(a) The judgment and decree of the High Court in Second Appeal No.523 of 1992 is a nullity as The High Court had no jurisdiction to order restitution.
(b) The application for restitution is not maintainable and the lower Court has no jurisdiction to entertain the same in view of Explanation (c) to subsection (1) of Section 144 CPC.
(c) The respondents are not entitled for restitution as the suit building is no longer in existence; and
(d) in any case, it is highly unjust and inequitable to order restitution having regard to the facts and circumstances of the case and the conduct of the respondents.
8. On the other hand, Sri A. Venkatramana, the learned Counsel appearing for the respondents has contended that me judgment in Second Appeal No.523 of 1992 is perfectly valid and binding on the petitioners and the same operates as res judicata and the petitioners have no right to question the same. He also submitted that this question cannot be permitted to be raised for the first time in the CRP as the same was not raised in the lower Court. He next contended that when once the decree was set aside in appeal, the respondents are entitled for restitution as a matter of course and the Court is bound to order restitution if the conditions laid down in Section 144 CPC are satisfied and it has no discretion in the matter. Apart from Section 144 CPC, the Court also has inherent power to order restitution. He further contended that the plaintiff, having obtained possession of the building during the pendency of the second appeal, his possession is litigious possession which is subject to the result of the second appeal. He is, bound to protect the property by taking proper care. It is, therefore, not open to the petitioners to contend that the property was destroyed and, as such restitution cannot be ordered. He finally submitted that the order passed under Section 144 CPC is appealable as a decree and hence revision does not lie.
9. The doctrine of restitution, which is embodied in Section 144 CPC is founded on the cardinal principle of law that the acts of Courts should not be allowed to work injury on the suitors. In the leading English case of Rodger v. Comptoir D’ Escompte De Paris, (1871) 40 LJPC 1 = 19 WR (Eng.) 449, Lord Cairns said, “One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors”. The expression “the act of the Court” does not mean merely the act of the primary Court or of any intermediate Court appeal but the act of the Court as a whole from the lowest
Court to entertain jurisdiction over the matter to the highest Court which finally disposes of the case. The doctrine contemplates a case where property has been received by the decree-holder under his decree but the decree is subsequently wholly or partially reversed or varied in other proceedings. Section 144 CPC also includes a case where a decree has been executed during the pendency of an appeal against it and the decree so executed was set aside on appeal partially or totally. The word ‘restitution’ connotes restoration to a party on the variation or the reversal of the decree what has been lost to him in execution of the decree or directly in consequence of that decree. In such a case the law raises an obligation on the party who received the benefit of erroneous judgment to make restitution to the other party for what it had lost and this obligation, it is the duty of the Court, to enforce unless it is shown that restitution would be clearly contrary to the real justice of the case. (See : Bhagwan Singh v. Sri Kishen Das, , Binayak Swain v. Ramesh Chandra, , and ILR 23 Mad. 306). Restitution, conceived in that light, namely doing justice between the parties, will necessarily have to depend on the facts and circumstances of each case and cannot be reduced to the form of an inflexible rule that Courts should have regard only to the deteriment suffered by one party and not to the position of the other. The granting of restitution under Section 144 CPC should be consistent with justice to both the parties. (See : Pappu v. Ramanatha, AIR (50) 1963 Mad. 45 (FB)). Restitution is thus an equitable principle and is subject to the discretion of the Court. Section 144 CPC does not confer any new substantive right to the party not already obtaining under the general taw. The section merely regulates the power of the Court in that behalf, (See Union Carbide Corporation v. Union of India, . The Court also has inherent power to order restitution under
Section 151 CPC (See : P. Rajanna v. K. Lalitha Reddi, ).
10. Judged in the light of the above principles, the respondents are undoubtedly entitled to be put back in possession of the property consequent on the reversal of the decree in Second Appeal No.523 of 1992. It is, however, contended for the petitioners that the judgment and decree in Second Appeal No.523 of 1992 is a nullity as the High Court had no jurisdiction to order restitution and it is only the Court of first instance which is competent to order restitution under Section 144 CPC. It is, no doubt, well established that where the decree is a nullity, its invalidity can be set up in execution proceedings or even in collateral proceedings. (See : Sunder Dass v. Ram Parkash, , and Urban Improvement Trust v. Gokul Narain, . The judgment or decree can be said to be a nullity if the Court which passed the same was lacking in inherent jurisdiction in the sense that it could not have seizing of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter or over the parties to it. (See : Hiralal v. Kalinath, AIR 1962 SC 119). The judgment in Second Appeal No.523 of 1992 cannot be said to be a nullity in that sense. The High Court certainly had jurisdiction entertain the second appeal. While allowing the second appeal and setting aside the decree of the lower appellate Court, the High Court held that the appellant therein shall be entitled to be restored to possession of the suit premises if he has been evicted by executing the decree. In that context the High Court observed that whether the tenant in such a situation should be asked to make an application under Section 144 CPC or whether such a restitution can be obtained
by issuing a direction in the appeal itself makes no difference in principle. This observation is, no doubt, not in confirmity with sub-section (1) of Section 144 CPC read with clause (a) of explanation to the said sub-section according to which it is the Court of first instance which is competent to order restitution in a case where the decree has been varied or reversed in appeal. In State Bank of Saurashtra v. Chitranjan Rangaiah, , the Supreme Court held that in a situation where the decree of the trial Court has been reversed by the High Court in exercise of its appellate jurisdiction, clause (a) of the explanation to sub-section (1) of Section 144 CPC would be attracted and an application for restitution will have to be made to the Court of first instance and, therefore, it would not be proper for the Supreme Court to direct restitution. However, merely because the High Court made the above observation in its judgment, it cannot be said that the judgment is a nullity. Even if the judgment is wrong on merits, it cannot be attacked collaterally on the ground that it is a nullity. I do not, therefore, find any substance in the contention that the judgment in Second Appeal No.523 of 1992 is a nullity.
11. Similarly I do not find any force in the submission of the learned Counsel for the petitioners that the application for restitution is not maintainable in view of Explanation (c) to sub-section (1) of Section 144 CPC. Undoubtedly the application for restitution is filed in the Court of first instance. It is nobody’s case that the said Court has ceased to exist or has ceased to have jurisdiction to execute the decree. Merely because it was held by the High Court that the Court had no jurisdiction to entertain the suit and accordingly dismissed the suit, it does not mean that the Court ceased to exist or that it ceased to have jurisdiction to execute the decree. Explanation (c) has, therefore, no
application whatsoever and it is Explanation (a) that is applicable to the case.
12. So far as the contention that the respondents are not entitled for restitution as the building is no longer in existence is concerned, in Second Appeal No.523 of 1992, the same question has been raised and negatived. As such it is not open to the petitioners to raise the self same question once again as it is barred by res judicata.
13. Coming to the objection raised by the learned Counsel for the respondents regarding the maintainability of this civil revision petition, the definition of a decree contained in Section 2(2) CPC includes determination of any question within Section 144 CPC and accordingly an order granting restitution under Section 144 CPC is appelable. But in cases of restitution not falling within Section 144 CPC it is held that a revision will lie (See : , AIR 1934 Lahore 108 and (1885) 8 Mad. 494). That apart, an application for restitution is treated as an application in execution (See : Panchapakesh v. Natesa Pattar, AIR 1926 Mad. 813), and, if so, the order amounts to a determination under Section 47 CPC which does not amount to a decree and, therefore, a revision lies. In the instant case, the application for restitution may also be treated as an application for execution of the decree of the High Court since the High Court in Second Appeal No.523 of 1992 granted such direction for restitution. Apart from that, this Court, in exercise of its power of superintendence under Article 227 of the Constitution can, in appropriate cases, correct any error apparent on the face of the record.
14. For the aforesaid reasons, on the peculiar facts of this case, I am not included to accept the contention that the CRP is not maintainable. It now remains to be seen whether the impugned
order granting restitution unconditionally is justifiable.
15. As already noticed above, in Second Appeal No.523 of 1992, conditional stay of the execution of decree of eviction was granted subject to the appellant therein depositing all the arrears of rent. Admittedly the said condition was not complied with. Further the second appeal was allowed on the sole ground that the provisions of the Rent Control Act are applicable to the building and as such the civil suit is not maintainable. The other findings upholding the title of the plaintiff and also the existence of the relationship of landlord and tenant were not disturbed. Even though the plaintiff purchased the suit property under a registered sale deed dated 15-6-1983, no rents whatsoever were paid to the plaintiff or his successors all these years by the tenant. Under these circumstances, I am satisfied that it will be wholly unjust to grant restitution without any conditions. In my view, it is a fit case where restitution should be made conditional upon the respondent depositing the entire arrears of rent at the admitted rate of Rs.80/-per month from 15-6-1983 till the date on which they were dispossessed from the property in execution of the decree, together with interest thereon at 12% per annum. It is only on such deposit that the respondents should be given back possession of the property. The petitioners should be permitted to withdraw the amount so deposited without furnishing any security.
16. The CRP is accordingly disposed of modifying the order of the lower Court. Each party to bear its own costs.