1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7311 OF 2009 Smt.Grover Navill Cardamaster .. Petitioner versus Dadabhoy Vikas Maherjibhoy Patel & Ors. .. Respondents Mr.K.R.Zariwalla i/by Deepak T. Raut for the petitioner. Mr.C.N.Chavan for the respondents. CORAM : A.S.OKA, J. DATE : 14th January 2010. JUDGMENT: . On 16th September 2009, this Court issued notice for final disposal of admission stage. On 12th January 2010, submissions of the learned counsel appearing for the parties were fully heard. On account of paucity of time, judgment was not delivered on that day and the writ petition was adjourned till today for judgment. Today when the petition is called out, the learned counsel appearing for the respondents prays that he may be granted time to engage a senior counsel. Such a request could not have been made by the learned counsel appearing for the respondents as his submissions were fully heard on 12th January 2010 and the petition was adjourned till today for judgment. However, I have permitted the learned counsel appearing for the respondents to make further submissions. 2 2. The 1st to 4th respondents are the original plaintiffs. A suit for possession in respect of suit premises was filed by the respondents against one Mino R. Kateli who was the sole defendant. The decree for possession was passed in the said suit which was put to execution. It appears that the present petitioner obstructed the execution. Therefore, the respondents had taken out obstructionist notice for removal of obstruction of the petitioner in accordance with Rule 97 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”). On 14th January 2008, the learned Judge of the Court of Small Causes passed a decree in the obstructionist notice directing the petitioner to hand over possession of the suit premises to the respondents. It is not in dispute that the petitioner was dispossessed on the basis of the said decree. A Misc. Notice was taken out by the petitioner for setting aside the decree dated 14th January 2008. By judgment and order dated 28th August 2008, the learned Judge of the Court of Small Causes made the notice absolute by setting aside the decree dated 14th January 2008. By the said judgment and order, the original obstructionist notice was restored to the file and the said notice is pending. 3. The petitioner filed a Misc.Notice for restoration of possession in accordance with section 144 of the said Code. The said notice was dismissed by the learned trial Judge. The petitioner preferred an appeal before the Division Bench of the Court of Small Causes. The appeal has been dismissed and hence the present petition under Article 227 of the Constitution of India. 4. The submission of the learned counsel appearing for the petitioner is that 3 an order passed on a notice under Rule 97 of Order XXI of the said Code is a decree and accordingly a decree was purportedly passed against the petitioner by the Court of Small Causes on 14th January 2008. He submitted that the said decree has been set aside and the order setting aside the said decree has attained finality. His submission is that the order of restitution ought to have followed as a consequence of setting aside the decree dated 14th January 2008. He submitted that the Courts below have gone into the merits of the rights of the parties while rejecting the prayer for restitution and there was no choice but to pass an order of restitution. 5. The learned counsel appearing for the respondents submitted that the remedy of the petitioner was to apply for restoration of possession under Rule 99 of Order XXI of the said Code. He submitted that the notice/application for restoration of possession was, therefore, not maintainable. He submitted that the petitioner was never residing in the suit premises as she is a resident of Australia. He submitted that as the petitioner was never in possession, unless she adduces evidence in the obstructionist notice and establishes her right, an order of restoration of possession cannot be passed. He submitted that appeal preferred by the petitioner before the Appellate Bench of the Court of Small Causes was not maintainable and the remedy of the petitioner was to file a revision application before Appellate Bench of the Court of Small Causes. Lastly, he relied upon a decision of Division Bench of Kerala High Court in the case of K.A.Prabhakaran Vs. Kuttian Prakashan & Anr (AIR 1985 Kerala 204). He submitted that adjudication of rights of a third party cannot be made before the 4 third party is dispossessed in the execution of a decree. Lastly, he submitted that Court Receiver of the suit premises be appointed at the cost of respondents and the petitioner be placed in possession as an agent of the Receiver. 6. I have given careful consideration to the submissions. In view of the Rules 101 and 103 read with Rule 97 of Order XXI of the said Code, an order passed on a notice under Rule 97 of Order XXI of the said Code taken out for removal of obstruction has a force of decree. In fact on the obstructionist notice taken out by the respondents under Rule 97 of Order XXI of the said Code, the trial Court has passed a decree on 14th January 2008 directing the petitioner to hand over possession of the suit premises to the respondents. The said decree has been passed on the basis of the contention raised of the respondents that the petitioner was in possession and had obstructed execution of the decree passed in the suit. It is an admitted position that in execution of decree dated 14th January 2008, the petitioner was dispossessed. As stated earlier, the said decree dated 14th January 2008 has been set aside by order dated 28th August 2008 and as of today, the said order has attained finality. Section 144 of the said Code reads thus: “144. Application for restitution.- (1) Where and in so far as a decree [or an order] is [varied or reversed in any appeal, revision or other proceeding 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 decree [or order] or [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 5 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 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 purpose of obtaining any restitution or other relief which could be obtained by application under sub- section (1)”. 7. As stated earlier, the petitioner has been dispossessed on the basis of a decree which has been admittedly set aside. The obstructionist notice which is restored has not been finally decided. Therefore, section 144 of the said Code will have application to the facts of the case and there was hardly any discretion available with the trial Court to deny relief of restitution. The respondents obtained possession of the suit premises from the petitioner on the basis of a decree which has been set aside and therefore the respondents are not entitled to retain possession and the restitution must follow as a matter of course. 8. A submission was made with which the Appellate Bench of the Court of Small Causes was impressed that the appeal was not maintainable. Application for restoration of possession was made by the petitioner by invoking section 144 of the said Code. In view of sub-section 2 of section 2 of the said Code, an order determining questions within section 144 of the said Code is a decree which was 6 appealable in accordance with section 96 of the said Code. Therefore, the appeal preferred by the petitioner was very much maintainable. 9. Perusal of the impugned judgments and orders shows that the Courts below have gone into the merits of the alleged rights claimed by the petitioner on the basis of a decree of divorce granted by a Family Court of Australia. The scope of adjudication under section 144 of the said Code was very limited. The Courts below could not have gone into the merits of the rights of the petitioner to occupy the suit premises. As far as rights of the parties are concerned, the same will be decided in obstructionist notice which is pending before the trial Court. Therefore, the grounds on which prayer for possession has been rejected are wholly irrelevant and contrary to the scheme of section 144 of the said Code. 10. The learned counsel appearing for the petitioner has relied upon a decision of the Kerala High Court in the case of K.A.Prahakaran (supra). The law laid down by the Apex Court in the case of Brahmadeo Chaudhary Vs. Rishikesh Jaiswal [(1997) 3 Supreme Court Cases 694] is to the contrary and therefore, the said decision is no longer a good law. 11. Thus, the right of restitution has been established by the petitioner. As the restitution is a matter of right, the prayer made by the learned counsel appearing for the respondents for appointment of Court Receiver under Rule 1 of Order XL of the said Code cannot be acceded to as no case is made out for appointment of Court Receiver. However, as the obstructionist notice is pending, the petitioner will have to be put to terms. The petitioner will have to be restrained from creating 7 any third party interests in respect of the suit premises and from parting with possession of the suit premises till the disposal of the obstructionist notice. It is obvious that possession of the petitioner will be subject to final outcome of the pending obstructionist notice. 12. Hence, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned judgments and order are quashed and set aside and Misc. Notice No.191 of 2008 is made absolute. (b) The respondent shall hand over possession of the suit premises to the petitioner. (c) The petitioner is restrained from creating any third party interests in respect of the suit premises and from parting with possession of the suit premises till the final disposal of Notice No.67 of 2005. It is obvious that possession of the petitioner will be subject to final outcome of the said notice. (d) Hearing of the Obstructionist Notice No.67 of 2005 is expedited and the trial Court shall endeavour to conclude the hearing on or before 30th April 2010. (e) All contentions of the parties on merits of the said obstructionist notice are expressly kept open. (f) Petition is allowed in above terms. (A.S.OKA,J)