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TMI Blog1993 (12) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 consequential on such variation, reversal, setting aside or modification of the decree or order. Explanation-- For the purpose of subsection (I), 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 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding proclamation for sale was executed on 14-7-1975 and the sale was held on 21-7-1975. Plaintiff No. 2 being the highest bidder purchased the disputed property for a sum of Rs. 4200/- and the sale was confirmed on 26-8-1975, The said plaintiff No. 2 took delivery of possession of the suit premises on 29-12-1975. The Second Appeal No. 54/75 filed by defendant No. 1 was disposed of by this Court on 17-11-1977 and this Court though confirmed the judgments of the forums below with regard to the refund of consideration amount but directed that the said consideration amount would be paid along with the interest at the rate of 6 per cent instead of 12 per cent as directed by the trial Court. Defendant No. 1 then filed an application invoking the jurisdiction of the trial Court under Section 144, C.P.C. for restitution of possession of the house in question and that application was registered as KJC No. 67/78. The learned trial Judge allowed the said application by order dated 31-1-1983 inter alia on the findings that the plaintiffs in T.S. 26/67 had suppressed the valuation notice and had practised fraud upon the Court in getting the house sold for a sum of Rs. 4200/ - which was gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of restitution contemplates suitors that if the property has been received by the holder under his decree but the decree is subsequently, wholly or partially, reversed or varied, then the judgment debtor can seek the relief of restitution. In other words, Section 144, C.P.C. has been enacted for the purpose of granting restitution in a case where a decree might have been executed during the pendency of an appeal against it and the decree so executed was later on set aside on appeal partially or totally. The law raises an obligation on the party who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost. In other words, the Court should pass an order consistent with Justice to both the parties. Restitution, therefore, 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 detriment suffered by one party and not to the position of the other. The aforesaid doctrine is based on equitable principle and consequently cannot be applied in a case where it conflicts with another rule of equity. A person applying for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest from 12 per cent to 6 per cent, technically it would amount to a variance of the decree and, therefore, in term Section 144, C.P.C. may be applicable. But merely on the ground that there has been a variance of the decree, relief of restitution cannot be granted. A person who has suffered any loss by reason of the decree or order can only claim restitution on the reversal or variation of the decree or order. As has been stated earlier the party applying for restitution must be entitled to a benefit under decree varied and the relief claimed must be consequential on the variance of the decree. The object of the principle of restitution being to place a party who has been prejudicially affected by a decree which has been varied in the same position as he would have occupied if the decree stood originally in the same terms as it stood after variation. The prejudice to be removed by restitution must be the result of the erroneous terms of the original decree. In AIR 1948 Mad 12 (Kuppa Sankara Sastri v. Kakumanu Varaprasad) where a decree was scaled down under debt relief legislation and the original decree for Rs. 8000/- was modified in appeal into a decree of Rs. 7500/- but in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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