Case: MURTI BHAWANI MATA MANDIR REP. THROUGH PUJARI (D) THROUGH LR KAILASH Vs. RAJESH

The suit was dismissed by the Trial court on 11 April 1981 on the ground that the plaintiff had failed to prove possession over the land in dispute. Both the first appeal as well as the second appeal were dismissed on 23 March 1982 by the District Judge and on 5 May 1984 by the High CourtAfter the disposal of the second appeal, Geetabai filed an application under Section 144 of the Code of Civil Procedure, 1908 ( CPC) for the restoration of possession of the disputed land and for awarding mesne profits, before the Judge, Civil Court, Class I, SardarpurThe application was dismissed on 24 August 1998 by the executing court. The appeal filed before the Additional District Judge by the first respondent was allowed and the case was remanded back to the executing court. The appellant filed a second appeal before the High Court which was dismissed in limine by the impugned order dated 3 December 2004 on the ground that no substantial question of law arose.

Reasoning:
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 reversedIn the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant.