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Section 144 – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

144. Application for restitution..

(1) Where and in so far as a decree 1[or an order] is 2[varied or reversed in any appeal, revision or other proceedings 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 1[or order] or 3[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 mesne profits, which are properly 4[consequential on such variation, reversal, setting aside or modification of the decree or order.]

 

5[Explanation.-For the purposes 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) where 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 pr-pose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

 

STATE AMENDMENT

 

Uttar Pradesh-Substitute the following for sub-section (1) of section 144 of the Code:

 

“(1) Where and in so far as a decree or an order is varied or reversed in appeal, revision or otherwise, 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 for as may be, place the parties in the position which they would have occupied but for such decree or order or such part there of as has been varied or reversed; and for this purpose, the Court may make any orders, including orders for the refused of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal”.

 

[Vide U.P. Act No. 24 of 1954 sec. 2 and Sch., Item 5, entry 7 (w.e.f. 30-11-1954).]

 

COMMENTS

 

(i) The Court which is competent to entertain the application for restitution is the Court of first instance; Neelathupara Kummi Seethi Koya Phangal (dead) by LRs. v. Montharapalla Padippua Attakoya, AIR 1994 SC 1591.

 

(ii) Provisions of section 144 can be invoked only in pending cases; Chhota Singh v. Union of India, AIR 1993 P&H 79: 1993(2) Land LR 77.

 

(iii) Whenever an ex parte order/decree for possession/eviction is set aside, the party who was dispossessed/evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith inspite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession; Chanda Sab v. Jamshed Khan, AIR 1993 Kant 338: 1993(2) Kan
t LJ 638: ILR (Kant) (1993) 2197.

 

(iv) Where the possession has been taken forcibly by a landlord/defendant during the pendency of the proceedings, i.e., when the application of temporary injunction restraining landlord/defendant from interfering with possession is dismissed by the trial Court and before filing the appeal, section 144 may not strictly apply; Cheni Chenchaiah v. Shaikh Ali Saheb, AIR 1993 AP 292: 1993(2) Andh LT 517: 1993(2) Cur CC 364.

 

(v) Settlement in Bhopal Gas Disaster case—Settlement set aside—Union Carbide Corporation entitled to restitution of entire amount deposited with interest; Union Carbide Corporation v. Union of India, AIR 1992 SC 248.

 

(vi) Where property was sold in auction in execution of decree which was subsequently set aside in appeal, auction-purchaser being already aware of pending appeal against decree cannot resist restitution; Chinnamal v. P. Arumugham, AIR 1990 SC 1828.

 

1. Ins. By Act 66 of 1956, sec. 13 (w.e.f. 1-1-1957).

2. Subs. by Act No. 104 of 1976, sec. 48, for “varied or reversed, the Court of first Instance” (w.e.f. 1-2-1977).

3. Subs. by Act No. 104 of 1976, sec. 48, for “such part thereof as has been varied or reversed” (w.e.f. 1-2-1977).

4. Subs. by Act No. 104 of 1976, sec. 48, for “consequential on such variation or reversal” (w.e.f. 1-2-1997).

5. Ins. by Act No. 104 of 1976, sec. 48 (w.e.f. 1-2-1977).

 

 

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Civil Procedure Code 1908

 

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