1. This is a second appeal by one Sita Ram, whose application for restitution to possession of certain houses Nos. 1, 2 and 3 has been refused by the two lower civil Courts. The facts are simple and were not in dispute. Har Sahai the respondent, brought a suit No. 561 of 1921 in the Court of the Munsif against Sita Ram appellant for possession of houses Nos. 1, 2 and 3, another house No. 4 and a nibehra. Originally the suit was decreed ex parte then restored and decree for possession of houses Nos. 3 and 4 and a nibehra was granted to Har Sahai. Ultimately after an appeal and a second appeal it was decided that Har Sahai was entitled only to house No. 4 and the nibehra. Sita Ram has, therefore, applied under Section 144 Civil P.C., for restitution of possession of houses Nos. 1, 2 and 3. In the ordinary course it is clear that he would be entitled to restitution of these three houses under this section. But it is admitted that the appellant Sita Ram filed a partition suit, No. 18 of 1921, in the Court of the Subordinate Judge against the respondent. In the decree of this suit houses 1, 2 and 3 were given to Har Sahai respondent. It is admitted that this decree has become final. The only question before the Court is what is the effect of the decree in the partition suit No. 18 of 1921 on the present application. The lower Courts have gone out of their way to consider this matter from the point of view of res judicata, and the learned Counsel for the appellant has made reference to a ruling Amar Singh V. Govind Ram A.I.R. 1927 All. 717 to the effect that where two decrees operate as res judicata the latter decree must prevail over the former because it shuts out consideration of the former. These matters, however, do not arise in the present case, nor do I consider that any question of res judicata arises. It is sufficient to refer to the language of Section 144 itself. That section states:
where and in so far as a decree 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 such part thereof as has been varied or reversed.
2. Now the section lays down that where the decree has been varied or reversed, the applicant is to be placed in a position which he would have occupied but for such decree or part thereof as has been varied or reversed. In the present case, therefore, Sita Ram is to be placed in the same position which he would have occupied if the suit No. 561 of 1921 had never been brought. If that suit had never been brought, the partition suit No. 18 of 1921 would still have transferred possession of houses 1, 2 and 3 to Har Sahai. Nothing under Section 144 can affect the decree in partition suit No. 18 of 1921, because a decree in that suit has not been varied or reversed. Sita Ram therefore is not entitled to keep possession of these houses 1, 2 and 3. He is only entitled to be placed in the same position which he would have occupied if there had been no suit No. 561 of 1921, and that position is that he would have no possession of these houses because of suit No. 18 of 1921. The mistake into which the learned Counsel and the lower Courts have fallen is to omit to read Section 144 and they have assumed that it lays down something to the effect that where a decree has been varied or reversed the parties are to be placed in the same position in which they were before the suit was brought. There is no such provision in Section 144, and it does not date back to the time when the suit was brought, nor does it direct that other proceedings such as suits are to be ignored, Accordingly I find that there is no merit whatever in the present appeal and I dismiss it under Order 41, Rule 11.