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Restitution

Section 144
Application for Restitution (Sec. 144)
• Section 144(1):-
Where and in so far as decree or an order is 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 or order of such
part thereof as has been varied, reversed, set aside or
modifies; and for this purpose, the cour 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 or such variation,
reversal, setting aside or modification of the decree or
order.
EXPLANATION
• For the purposes of subsection (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 purpose
of obtaining any restitution or other relief
which could be obtained by application under
subsection (1).
• This section deals with provision relating to
‘restitution’. Restitution which has not been defined in
the Code, in simple language means an ‘act of restoring
or a condition of being restored’ or ‘an act of resorting
a thing to its proper owner’. In legal parlance, the word
restitution refers to restoring to a party the benefit
which the other party has received under a decree
subsequently held to be wrong.
• It is based on well known maxim ‘actus curiae
neminem gravabit’, that is the act of a court shall harm
no one’.
• The expression ‘act of the court’ does not
mean merely the act of the primary or trial
court, or intermediate court or appeal but the
act of the court as a whole from the lower
court which entertains the matter to the
highest court which finally dispose of the case.
WHO MAY APPLY FOR RESTITUTION
• A person may apply for restitution if he fulfills
the following two conditions:
• (i) He must be a party to the decree or order
reversed; and
• (ii) He must have become entitled to any
benefit by way of restitution or otherwise
under the reversing decree or order.
Accordingly, a trespasser cannot get
restitution.
• The word party would include a
representative also. It also includes any
beneficiary under the final judgment be it in
the technical sense, a party or not in the suit
or appeal. Expression ‘any party’ includes
transferee of a decree as also auction
purchaser.
Which Court May Grant Restitution?
• According to the explanation attached to the
section an application for restitution lies to the
court which passed has passed the decree or
made the order. According, an application for
restitution should be made in all cases to the
court of first instance that is the primary court
which passed the decree. When the court of first
instance loses its territorial jurisdiction or ceases
to exist, then the court which gets the jurisdiction
will be the court of first instance.
Conditions For the Applicability of the
Doctrine of ‘Restitution’
• For the applicability of the provision of section
144, i.e., Restitution, following conditions are
necessary to be satisfied:
• (i) The restitution sought must be in respect of
the decree or order which had been varied or
reversed;
• (ii) The party applying for restitution must be
entitled to a benefit under a reversing decree or
order; and
• (iii) The relief claimed must be properly
consequential on the reversal or the variation of
the decree or order.
• To above three conditions one more may be
added, that is,
• (iv) The applicant has lost something or has
been deprived of something because of the
decree which has subsequently been reversed
or varied.
• In simple language there must be:
• (a) An erroneous judgment;
• (b) The benefit of that erroneous judgment
has been received by one party; and
• (c) The erroneous judgment has been
reversed, set aside or modified.
• In case the above conditions are fulfilled, the
court is bound to pass an order for restitution.
• An important principle of law relating to
restitution was laid down by Karnataka High
Court in Chanda Sab vs. Jamshed Khan AIR 1993
Kant 338. The Court said that 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/order is
entitled to restitution forthwith despite the fact
that ultimately on merits, he may lose the case
and may have to yield back possession.
APPEAL
• Section 2(2) of the code delaing with the
definition of the term ‘decree’ says that it shall
include ‘the determine of any question under
section 144’. Thus, the determination of a
question under section 144 is a ‘decree’ and,
therefore, an appeal would lie. But when an
order of restitution is made in the exercise of
inherent powers under section 151 of the
code, such order is appealable or is not a
debatable question.
Bar to suit- section 144(2)
• Section 144 (2) declares in express terms that
where any restitution or other relief could be
obtained by an applicant under this section, no
separate suit shall lie for the purpose. According
to Mulla, ‘the suit that is barred under this
section is a suit to obtain restitution,
compensation or other relief which could be
obatined under this section.’ And, therefore, if
restitution could not be done under this section
but under section 151 in the exercise of inherent
jurisdiction, a separate suit would not be
incompetent.