{"id":7758,"date":"2003-11-28T00:00:00","date_gmt":"2003-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kandan-died-vs-k-periaswamy-on-28-november-2003"},"modified":"2016-02-18T12:39:50","modified_gmt":"2016-02-18T07:09:50","slug":"kandan-died-vs-k-periaswamy-on-28-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kandan-died-vs-k-periaswamy-on-28-november-2003","title":{"rendered":"Kandan (Died) vs K.Periaswamy on 28 November, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Kandan (Died) vs K.Periaswamy on 28 November, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 28\/11\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE P.D.DINAKARAN\n\nC.M.S.A.No.8 of 1994\n\n1.Kandan (died)\n2.Kandayee\n3.Palaniammal\n4.Perumayee\n5.Saraswathi\n6.Arukkani\n7.Arumugham                                     .. Appellants\n  (Appellants 2 to 7 brought on\n   record by order dated 28.11.2003\n   made in C.M.P.No.15081 of 2003)\n\n-Vs-\n\nK.Periaswamy                                   .. Respondent\n\n        PRAYER:  Against the judgment and decree dated 12.3.1993 passed by the\nSubordinate Judge, Sankari in C.M.A.No.34 of 1991 on appeal from the  judgment\nand  decree  in  R.E.A.No.143  of 1986 in R.E.P.No.89 of 1979 in O.S.No.408 of\n1978,d ated 11.9.1989.\n\n!For Appellants :       Mr.S.P.Subramaniam\n\n^For Respondent :       Mr.V.Radhakrishnan\n\n:JUDGMENT\n<\/pre>\n
        Heard Mr.S.P.Subramaniam,  learned  counsel  for  the  appellants  and
\nMr.V.Radhakrishnan, learned counsel for the respondent.\n<\/p>\n
        2.1.  The Appellants 2 to 7 are the legal representatives of the first
\nappellant, who was the defendant in the suit O.S.No.408 of 1978 on the file of
\nthe  District Munsif Court, Sankari laid by one Arthanari Goundar for recovery
\nof a sum of Rs.795.50.\n<\/p>\n
        2.2.  Pending the suit O.S.No.408 of 1978,  the  plaintiff,  Arthanari
\nGoundar also  obtained  an order of attachment before judgment in I.A.  No.932
\nof 1978 and the same was made absolute by order dated 22.8.1978,  setting  the
\nthe first appellant herein exparte.  Thereafter, the exparte decree was passed
\nin O.S.No.408  of  1978  on 29.8.1978.  The plaintiff, Arthanari Goundar filed
\nE.P.No.89 of 1979 for recovery of Rs.81 6.25 and Rs.152.90  by  sale  of  1.75
\nAcres  of  land, and the property of the first appellant herein was ordered to
\nbe sold on 7.6.1979, by  setting  the  first  appellant  herein  exparte,  and
\nultimately,  the  property  was sold for a sum of Rs.1,400\/- to the respondent
\nherein on 7.6.19 79.  Concededly, the respondent herein is the  son-in-law  of
\nthe plaintiff,  Arthanari  Gounder.   Thereafter, the sale was confirmed by an
\norder dated 17.8.1979 and possession was  also  delivered  to  the  respondent
\nherein, viz., auction purchaser on 8.3.1980.\n<\/p>\n
        2.3.   In  the meanwhile, the first appellant filed I.A.No.525 of 1980
\nto set aside the exparte decree dated 29.8.1978 made in O.S.No.408 of 1978 and
\nthe  same  was  transferred  to  the  file  of  the  District  Munsif   Court,
\nThiruchengode and renumbered  as  I.A.No.115  of  1981.    The  said I.A.  was
\nallowed by order dated 8.3.1982, and the suit was  restored  and  numbered  as
\nO.S.No.192 of 1982 on the file of the District Munsif Court, Thiruchengode.\n<\/p>\n
        2.4.  In view of the restoration of the suit, the plaintiff, Arthanari
\nGounder  filed  I.A.No.523 of 1982 to set aside the order passed in I.A.No.115
\nof 1981 dated 8.3.1982, and the first appellant filed R.E.  A.No.143  of  1986
\nunder  Section  144  of  the  Code  of  Civil Procedure for restitution of his
\nproperty.  However, I.A.No.523 of 1982 was dismissed by order  dated  2.9.1985
\nand  the  same  was  confirmed  by  an  order of this Court dated 1.11.1985 in
\nC.R.P.No.3825 of 1985.\n<\/p>\n
        2.5.  Since no steps were taken by the legal  representatives  of  the
\ndeceased  plaintiff,  the  suit O.S.No.192 of 1982, was dismissed as abated by
\norder dated 29.4.1986 of the learned  District  Munsif,  Thiruchengode.    The
\napplication, R.E.A.No.143 of 1986, preferred by the first appellant herein was
\nalso dismissed on 16.11.1987 for non appearance of the first appellant herein.
\nThereafter,  by  an  order dated 23.11.19 87 made in R.E.A.No.382 of 1987, the
\norder dated 16.11.1987  made  in  R.E.A.No.143  of  1986  was  set  aside  and
\nconsequently, R.E.A.No.143  of  1986  was  restored.  However, R.E.A.No.143 of
\n1986 preferred by the first appellant herein under Section 144 of the Code  of
\nCivil  Procedure  for restitution of his property was dismissed by order dated
\n11.9.198 9 holding that the respondent\/auction purchaser is bonafide purchaser
\nand the same was confirmed, on appeal, in C.M.A.No.34 of 1991 by judgment  and
\ndecree dated 12.3.1993.  Hence, the present civil miscellaneous second appeal.\n<\/p>\n
        3.   Mr.S.P.Subramaniam,  learned  counsel for the appellants contends
\nthat, under the facts and circumstances of case,        particularly  in  view
\nof  the  undisputed relationship between the respondent\/auction purchaser, who
\nis the son-in-law of the plaintiff in O.S.No.192 of 1982, the finding  of  the
\nCourts  below  that  the  respondent  is  a bonafide purchaser is perverse and
\nillegal apparently on the face of the records and in any event, in view of the
\norder of restoration of the suit dated 8.3.1982, which had become final as per
\nthe order of  this  Court  dated  1.11.1985  in  C.R.P.No.3825  of  1985,  the
\nappellants  are  entitled for restitution of their property as per Section 144
\nof the Code of Civil Procedure Code.\n<\/p>\n
        4.  Mr.V.Radhakrishnan, learned counsel for  the  respondent  contends
\nthat,  notwithstanding the relationship of the respondent\/auction purchaser as
\nson-in-law of the plaintiff,  the  respondent  is  a  bonafide  purchaser  and
\ntherefore, the property cannot be restored.\n<\/p>\n
        5.   I  have  given  careful  consideration to the submissions of both
\nsides.\n<\/p>\n
        6.  The substantial question of law that arises for  my  consideration
\nin  this appeal is “whether the appellants are entitled for restoration of the
\nproperty under Section 144 of the Code of  Civil  Procedure  in  view  of  the
\nrestoration of the suit by order dated 8.3.1982 in I.A.  No.115 of 1981, which
\nalso  got confirmed by an order of this Court dated 1.11.1985 in C.R.P.No.3825
\nof 1985?”\n<\/p>\n
        7.  In this context, it is apt to refer Section 144  of  the  Code  of
\nCivil Procedure, which reads as under:\n<\/p>\n
“Section:  144 – Application for restitution:\n<\/p>\n
(1)  Where  and in so far as a decree or an order is varied or reversed in any
\nappeal, revision or other proceeding or is set aside or modified in  any  suit
\ninstituted  for  the purpose, the Court which passed the decree or order shall
\non the application of any party entitled to any benefit by way of  restitution
\nor  otherwise,  cause  such  restitution to be made as will, so far as may be,
\nplace the parties in the position which they would have occupied but for  such
\ndecree  or  order or such part thereof as has been varied, reversed, set aside
\nor modified; and, for this purpose, the Court may make any  orders,  including
\norders  for  the  refund  of  costs  and for the payment of interest, damages,
\ncompensation and mense profits,  which  are  properly  consequential  on  such
\nvariation, reversal, setting aside or modification or the decree or order.\n<\/p>\n
Explanation:  For the purpose of sub-section (1), the expression ” Court which
\npassed the decree or order” shall be deemed to include-\n<\/p>\n
(a)  where  the  decree  or  order  has been varied or reversed in exercise of
\nappellate or revisional jurisdiction, the Court of first instance;\n<\/p>\n
(b) where the decree or order has been set aside by a separate suit, the Court
\nof first instance which passed such decree or order;\n<\/p>\n
(c) whether the Court of first instance has ceased to exist or has  ceased  to
\nhave  jurisdiction  to  execute  it,  the Court which, if the suit wherein the
\ndecree or order  was  passed  were  instituted  at  the  time  of  making  the
\napplication for restitution under this section, would have jurisdiction to try
\nsuch suit.\n<\/p>\n
(2)  No  suit shall be instituted for the purpose of obtaining any restitution
\nor other relief which could be obtained by application under sub-section (1).”\n<\/p>\n
        8.1.  Under Section 144 of the Code of Civil Procedure,  the  doctrine
\nof   restitution  contemplates  that  where  a  property  was  received  by  a
\ndecree-holder in execution of a decree which, on appeal, either in whole or in
\npart thereof, is subsequently reversed or varied, the court  is  empowered  to
\nrestore  to  the judgment-debtor what has been lost to him in execution of the
\ndecree and it is the consequence of the erroneous decree.  The restitution  is
\nconsequential  to  the  variation  or  reversal  of the decree or on its being
\nmodified or set aside.  The condition precedent for restitution, therefore, is
\nthat the decree of the trial court must be reversed or  varied  in  appeal  or
\notherwise.   The word consequentially lays emphasis on the obligation on the
\nparty to the suit or proceedings which received the benefit of  the  erroneous
\ndecree to  make  restitution  to  the  other  party for what he has lost.  The
\ncourt, therefore, is bound to restore the parties, as far as they can  be,  to
\nthe same position they were at the time when the court by its erroneous action
\nhad displaced  them  from  it.   Equally where a sum of money was recovered in
\nexecution  by  a  decree  which  was  subsequently  reversed  or  varied,  the
\njudgment-debtor  is  entitled  to get back not only the sum recovered but also
\nthe interest thereon or damages or compensation for the period that the amount
\nhad been retained by him.  The reason being that the person who has taken  the
\nmoney  improperly  from the judgment-debtor has to restitute to him the amount
\nas a corollary with interest during the time that the money has been  withheld
\nfrom him.    The owner or the person interested in the land when recovered the
\ncompensation under the award and decree which was reversed, varied or modified
\non appeal, the court is empowered under Section 144 Code of Civil Procedure to
\nrestitute the amount  with  interest  or  quantified  damages  or  by  way  of
\ncompensation, vide Kartar Singh v.  State of Punjab, (1995) 4 SCC 101.\n<\/p>\n
        8.2.   The  doctrine  of  restitution  is based upon the high cardinal
\nprinciple that the acts of the court should not be allowed to work  in  injury
\nor injustice  to  the  suitors.    Section 144 of the Code of Civil Procedure,
\ntherefore, contemplates restitution in a case where property has been received
\nby the decree-holder under the decree, which was subsequently either  reversed
\nor varied  wholly  or  partly  in  those proceedings or other proceedings.  In
\nthose set of circumstances,  law  raised  an  obligation  on  the  party  that
\nreceived  the  benefit  of such reversed judgment to restitute the property to
\nthe person who had lost it, vide Neelathupara Kummi  Seethi  Koya  Phangal  v.
\nMontharapalla Padippua Attakoya,<\/a> 1994 Supp (3) SCC 760.\n<\/p>\n
        8.3.   While  disposing  an application filed under Section 144 of the
\nCode of Civil Procedure, the burden, therefore, lies on the  Court  to  render
\ncomplete  justice  but  not  merely  disposing  the  application  on technical
\ngrounds, because the Courts are inclined to undo the ill effects of the  wrong
\ndoer  by passing an order to meet the ends of justice instead of defeating the
\njustice.  A reading of Section 144 of the Code of  Civil  Procedure  makes  it
\nclear  that  it  would apply where the judgment and decree itself was reversed
\nand set aside.\n<\/p>\n
        9.  In the instant case, it is not in dispute  that  the  very  decree
\nmade  in  O.S.No.408  of  1978 was set aside in view of the restoration of the
\nsuit.  In such case, the Court has got a duty to  enforce  its  obligation  to
\nrestitute  the  property  to  the applicant who was deprived of his possession
\nbased on the decree or order, inasmuch as it is a settled law that whenever an
\nexparte decree or order is set  aside,  the  party  who  was  dispossessed  or
\nevicted  in  pursuance  of  such  exparte  decree  or  order  is  entitled  to
\nrestitution forthwith, in spite of the fact that, ultimately,  on  merits,  he
\nmight  loose  the  cause;  and that whenever an exparte decree or order is set
\naside, no person who has entered into possession through the  party  obtaining
\nthe  exparte decree or order, can resist or obstruct restitution on the ground
\nthat he is a bonafide transferee.\n<\/p>\n
        10.  Concededly, the  respondent  is  the  son-in-law  of  the  decree
\nholder, who  obtained the exparte decree, but not a stranger.  Hence, the owed
\nobject of the legislature enshrined under Section 144 of  the  Code  of  Civil
\nProcedure  has been miserably overlooked by the Courts below in dismissing the
\napplication filed by the first appellant in R.E.A.No.143 of 1986, as confirmed
\nby order dated 12.3.1993 passed by the learned Subordinate Judge, Sankarai  in
\nC.M.A.No.34 of 1991.\n<\/p>\n
        11.   For the reasons aforesaid, answering the substantial question of
\nlaw in favour of the appellants, the appeal is allowed, the  learned  District
\nMunsif, Sankari is
\ndirected  to  restore  the  possession  to  the  appellants,  however  without
\nprejudice to the right of the respondent to workout his right for claiming the
\nsale amount  from  the  legal  representatives  of  the  plaintiff,  Arthanari
\nGounder.\n<\/p>\n
        In the result, the appeal is allowed.  No costs.\n<\/p>\n
Index:  Yes
\nInternet:Yes<\/p>\n
sasi<\/p>\n
To:\n<\/p>\n
1.  The District Munsif
\nSankari.\n<\/p>\n
2.  The Subordinate Judge
\nSankari.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kandan (Died) vs K.Periaswamy on 28 November, 2003 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-7758","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKandan (Died) vs K.Periaswamy on 28 November, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kandan-died-vs-k-periaswamy-on-28-november-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kandan (Died) vs K.Periaswamy on 28 November, 2003 - 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