Case: BANSIDHAR SHARMA (SINCE DECEASED) REPRESENTED BY HIS LEGAL REPRESENTATIVE Vs. THE STATE OF RAJASTHAN

appeal is dismissed, but in the circumstances without costs. 16. It has been further considered by other coordinate Bench of this Court in the recent past in Murti Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh & Ors. 2 as under:- 2 2019(3) SCC 707 Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed. 17. It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them. 18. Indisputedly, in the instant case, there was no decree or order of the trial Court by virtue of which the appellant was given possession of the subject property. On the contrary, the suit filed at the instance of the appellant-plaintiff came to be dismissed with costs and that came to be confirmed on dismissal of the first appeal by the Single Judge of the High Court and special leave petition filed before this Court also came to be dismissed. The possession was handed over to the appellant of the subject property under the interim order passed by the High Court pending first appeal of which a reference has been made and after the appeal came to be dismissed, its logical consequence was noticed by the High Court in its judgment dated 20 th April, 2018 directing the appellant to hand over possession of the subject property to the respondents- defendants obviously for the reason that on dismissal of the first appeal preferred by the appellant, he was under an obligation to restore back peaceful possession to the respondents on vacation of the interim orders . 19. In the present facts and circumstances, the respondents have not committed any error in taking decision to call upon the appellant for handing over possession of the subject property at least after the special leave petition filed at the instance of the appellant came to be dismissed under order dated 17 th May, 2018 and in sequel thereto, there was no other remedy left with the respondents than to file an application under Section 151 CPC before the High Court for restoration of possession of the subject property. 20. After we have heard the parties, find no error being committed by the High Court in passing of the order dated 21 st August, 2019 directing the appellant to hand over possession of the subject property in question which was handed over to the appellant under the interim orders passed by the High Court pending S.B. Civil First Appeal No. 86/1979 which finally came to be dismissed vide judgment dated 20 th April, 2018. 21. The submission of the learned counsel for the appellant that execution application under Section 144 CPC would lie only before the Court of first instance, which in the instant case is Additional District and Session Judge, No. 1, Jaipur City and not the High Court and the impugned judgment is without jurisdiction, is without substance for the reason that there was no decree or order of the trial Court which is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. Indisputedly, the possession was handed over to the appellant-plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondents- defendants. In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC. 22. Before parting with the order, taking note of the fact that the proceedings were initiated at the instance of the appellant-plaintiff way back in the year 1961 and almost 59 years have rolled by now, to give a quietus to the litigation and also the fact that the appellant had failed at all the stages, having no authority to hold possession of the subject property, we, therefore, consider it appropriate to direct the appellant to hand over peaceful possession of the subject property to the respondents-defendants in compliance of the judgment of the High Court dated 20 th April, 2018 followed with order dated 21 st August, 2019 positively within a period of eight weeks from today failing which this Court will take serious note of the matter and proceedings may be instituted against the appellant- plaintiff for deliberate defiance of the order of this Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them18. Indisputedly, in the instant case, there was no decree or order of the trial Court by virtue of which the appellant was given possession of the subject property. On the contrary, the suit filed at the instance of the appellant-plaintiff came to be dismissed with costs and that came to be confirmed on dismissal of the first appeal by the Single Judge of the High Court and special leave petition filed before this Court also came to be dismissed. The possession was handed over to the appellant of the subject property under the interim order passed by the High Court pending first appeal of which a reference has been made and after the appeal came to be dismissed, its logical consequence was noticed by the High Court in its judgment dated 20 th April, 2018 directing the appellant to hand over possession of the subject property to the respondents- defendants obviously for the reason that on dismissal of the first appeal preferred by the appellant, he was under an obligation to restore back peaceful possession to the respondents on vacation of the interim orders19. In the present facts and circumstances, the respondents have not committed any error in taking decision to call upon the appellant for handing over possession of the subject property at least after the special leave petition filed at the instance of the appellant came to be dismissed under order dated 17 th May, 2018 and in sequel thereto, there was no other remedy left with the respondents than to file an application under Section 151 CPC before the High Court for restoration of possession of the subject property20. After we have heard the parties, find no error being committed by the High Court in passing of the order dated 21 st August, 2019 directing the appellant to hand over possession of the subject property in question which was handed over to the appellant under the interim orders passed by the High Court pending S.B. Civil First Appeal No. 86/1979 which finally came to be dismissed vide judgment dated 20 th April, 201821. The submission of the learned counsel for the appellant that execution application under Section 144 CPC would lie only before the Court of first instance, which in the instant case is Additional District and Session Judge, No. 1, Jaipur City and not the High Court and the impugned judgment is without jurisdiction, is without substance for the reason that there was no decree or order of the trial Court which is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. Indisputedly, the possession was handed over to the appellant-plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondents- defendants. In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC22. Before parting with the order, taking note of the fact that the proceedings were initiated at the instance of the appellant-plaintiff way back in the year 1961 and almost 59 years have rolled by now, to give a quietus to the litigation and also the fact that the appellant had failed at all the stages, having no authority to hold possession of the subject property, we, therefore, consider it appropriate to direct the appellant to hand over peaceful possession of the subject property to the respondents-defendants in compliance of the judgment of the High Court dated 20 th April, 2018 followed with order dated 21 st August, 2019 positively within a period of eight weeks from today failing which this Court will take serious note of the matter and proceedings may be instituted against the appellant- plaintiff for deliberate defiance of the order of this Court.