A second appeal can also be made on a "substantial matter of law". The Court held that the order can be passed for demolition of the wall under section 151 even if section 144 cannot be applied in this case. Section 144 does not include all of the law. Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai, AIR 1965 SC 1477. The act of the court shall not harm anyone. The doctrine of restitution as envisaged under the CPC is an enabling provision in consonance with the principles of equity and justice. It is noteworthy to mention that every decree is appealable unless otherwise has been expressly stated in the statute. If such a lawsuit is successful, the litigation will continue indefinitely. under Section 144, CPC. ground that no substantial question of law arose. S.N. He then executes the order. Ganesh Parshad v. Adi Hindu Social Service League, AIR 1975 AP 310 at p. 313, Gurunath Khandappagouda v. Venkatesh Lingo, AIR 1937 Bom 101 at p. 103. Section 2(2) of the Code of Civil Procedure, 1908 does not expressly talk about deemed decrees but the Code, in general, recognizes this type of decree in several ways which find a discussion hereunder. Section 144 doesn't confer any substantive rights. Third, to recompense or restore the harm done to another. The court has inherent power under section 151 CPC:To consolidate cases and appeals, including Supreme Court appeals; To postpone the hearing of litigation until the outcome of a specified action or when some of the issues are common in another current suit; I)- To suspend cross-suits for convenience; ii)- To provide a defense in forma pauperis,iii)- To add a party or transpose parties, or where the appeal is filed against dead persons, to allow the appellant to add legal representatives of the deceased as parties in a proper case;Iv)- To entertain the application of a third person to be made a party; Iv)- To punish summarily by imprisonment for contempt of court committed by the publication of a libel out of court; v)-To stay the drawing up of the court's orders or to suspend their operation, if the necessities. The Court in the present case held that a claim for restitution of the excess rent paid under the order of the controller was not maintainable under section 144. Section 144 CPC [Restitution] Not Attracted When There Is No - LiveLaw The article discusses the concept of deemed decree under the Code of Civil Procedure, 1908. Against whom restitution may be granted? Banerji v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128; Ramji Seth v. Smt Zohra, 1983 All LJ 322. It also refers to the entire act of the court from the lowest court that entertains the matter up until the highest court that finally decides the case. 144 CPC - itatonline.org Section 144 CPC [Restitution] Not. Pending application(s), if any, shall stand disposed of. Similarly in DTC v. M/S International Avenues, it was held that any person who withdraws proceedings without seeking adjudication of the same, or even when proceedings are dismissed, such plaintiff/applicant/petitioner is bound to restitute the benefit which it has received under interim orders of the court. Thus in such scenarios, the only miscellaneous appeals will be applied in place of regular appeals. Zafar Khan, v. Board of Revenue 1984 Supp SCC 505 at pp. According to Section 144 (1) where and in so far as a 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 well so far as may be, place the parties in the position which they would have occupied but for such 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 and mesne profits which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. 75-76, Chinnammal v. P. Arumugham (1990) 1 SCC513: AIR 1990SC 1828. There are several cases on this point. Explanation.For the purposes 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. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include, (a) any adjudication from which an appeal lies as an appeal from an order, or. The petitioners herein are the legal representatives of late P. Muthuswamy who was the sole plaintiff in OS No.28 of 1994 on the file of the Court of the Principal District Munsif, Hyderabad, East and North, Rangareddy District, whereas the respondents are the legal . 513-14: AIR 1985 SC39 at P. 46. 2 SCR 436. In this project we have discussed the nature and scope of the Restitution given under S. 144 of the CPC. i.e. The objective behind the Section 144 is that no person should be allowed to enjoy a benefit derived pursuant to an order/judgment of a court if such order/judgment is ultimately finally not sustained. It empowers the court to issue any instructions it sees proper. RESTITUTION UNDER CODE OF CIVIL PROCEDURE - Legal Vidhiya CONCLUSION:Even if a case does not fall under Section 14 of the CPC, Section 151 affords the courts an inherent power to make reparation to do justice to the parties. Restitution (Section 144 of civil procedure code) - SRD Law Notes S.N. Do you have a 2:1 degree or higher? Whether incorrect description of property will vitiate sale transaction? Here, B is entitled to restitution under section 144. A restitution application that is denied on merits would therefore be considered res judicata. The decree is later reversed on appeal. (b) for the restitution of any property taken in execution of any decree, or. The court is empowered to pass orders which, Accordingly, we allow the appeal and set aside the, judgment of the High Court dated 3 December 2004. Manikchand v. Gangadhar AIR 1961 Bom 288, Shanker Lal v. Ram Kishan AIR 1976 All 250, State Bank of Saurashtra, v. Chitranjan Rangnath (1980) 4 SC 516 at page 525 AIR 1980 SC 528 at page 1534, Janak Raj v. Gurdial Singh, AIR 1967 SC 608: (1967) 2 SCR 77, Chinnammal v. P. Arumugham (1990) 1 SCC 5313, Padanathil Ruqmini v. P.K. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. In the case of K. N. Krishnappa v. T. R. Gopalkrishna Setty, the Hon'ble Court stated that under section 151 of the CPC, the inherent powers of the court process might be used to restore the parties to the position they were in previous to the execution procedure. Dhar (M.P.) Therefore, rejection of a plaint cannot be considered as a decree under Section 2(2) instead of a deemed decree as the legislation intends to state. District & Session Judge, Bulandshahr. Oxford English Dictionary defines restitution as an act of restoring a thing to its proper owner. The literal interpretation of the word deemed signifies to consider. Although not mentioned in any provision, deemed decrees being implied from the examples provided in this article has a greater role to play in the working of the Code of Civil Procedure, 1908. Furthermore, as the doctrine aims to speed up litigation and provide swift relief to the adverse party, it merely sets out a procedure; the provision should not be restricted. Now it is necessary to point out why rejection of a plaint will be perceived as a deemed decree. team@lawkaro.com The Andhra High Court in the case of Zafu Javeed v. V. Narasimha Reddy And Others (1998) observed that Order 21 Rule 98 of the Code of Civil Procedure, 1908 contemplates adjudication related to the questions that are referred in Rule 101 Code which deals with the questions that are to be determined. As far as Indian Code of Civil procedure is concerned, though the term restitution has not been defined in the Code, it has got its statutory recognition in the section 144. It will be wrong to assume that it is the act of the court being wrongful or a mistake or error committed by the court which attracts the applicability of the doctrine of restitution. 1114 (1997). Section 144 of CPC Where to apply? In the court's general jurisdiction, it is to act justly and fairly in all circumstances for all parties. Statutory power:A court's ability to award restitution is not limited to the instances addressed by the provisions of this section. Doctrine of Restitution - Section 144 CPC. See you there. Therefore, trespassers cannot be granted restitution. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. What remedies court can grant? Halsbury's Laws of England states that "any civilized system of laws is bound to provide remedies in cases of what has been called unjust enrichment and unjust benefit," that is to say, to prevent a man retaining the money of, derived from, or benefit of another that it is against his conscience that he should retain. LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. Thus although it cannot be considered a decree, it can be perceived as a deemed decree. | Designed & Developed by SIZRAM SOLUTIONS. This section 144 only covers a portion of the general law on restitution. The Courts jurisdiction with regard to restitution can be exercised even when a case does not strictly fall within the ambit of Section 144. The remedy of the first Respondent, if any, did not lie in an application for restitution before the executing court Under Section 144, Code of Civil . In simple words, there must be an erroneous of judgment, the benefit of that erroneous of judgment has been received by one party. "Restitution" can also be used for restoring anything that was wrongfully taken from another. Section 144 embodying the doctrine of restitution does not confer any new substantive rights to the party not available under the general law. The suit, was for a permanent injunction against Geetabai (since, deceased) and respondent Nos. There is no ambiguity that the gift is a transfer without consideration. (i) the restitution sought must be in respect of the decree or order which had been reserved or varied; (ii) the party applying for restitution must be entitled to benefit under the reserving decree of order; and. [CDATA[*/ var d = new Date(); var n = d.getFullYear(); document.getElementById('getYear').innerHTML = n; /*]]>*/ Law Savers. Nowhere can the concept of the deemed decree be noticed in this provision and therefore it is clear that although deemed decree symbolizes any decree that does not fulfill the essentials under Section 2(2), it can be considered as a decree. 2054 0 Image source - https://bit.ly/3g6otiK This article is written by Oishika Banerji of Amity Law School, Kolkata. What are the Rights of LGBTQ Individuals in India? Disclaimer: This essay has been written by a law student and not by our expert law writers. Landmark cases:Kabita Trehan VS. Balsara Hygiene Product Ltd:The Honble Supreme Court held that Section 144 is not exhaustive and a court can use its inherent power for grant restitution. Periera, AIR77 Del 12 at pp. of A.P. Its historical roots may be traced back to the Middle Ages and can be found mostly in Germanic Common Law. S.M. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. The court is responsible for enforcing this obligation. Copyright 2020-2021 LawKaro - All Rights Reserved. Home Law and Ethics RESTITUTION (SECTION 144 OF CIVIL PROCEDURE CODE). When at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict, the Courts find nothing irrational in the parties demanding restitution. respondent hand over possession to the appellant. Section 144 of the civil procedure code does not confer any new substantive right. 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. Execution proceedings are also subject to the doctrine of res Judicata. There was once a conflict between judicial opinions as to whether Section 144 proceedings were execution proceedings. Though litigation is not gambling yet there is an element of chance in any litigation. It provides that when either decree or an order has been either of the following: Conditions for applying:- Before restitution can be ordered under this section, the following three conditions must be satisfied:- 1. It is the restoration of something lost or stolen to its proper owner. Restitution is an old institution with a long history in the realms of law and justice. From this definition, it becomes clear that there are three classes of decrees namely. Doctrine of Restitution || Sec. 144 || CPC - Lawnotes4u unless it is required for the goals of justice or to prevent misuse of the court's procedure. Restitution must be sought about the decree or order that was reversed or modified. The main object of the provision of restitution Restitution avoids multiplicity of the cases and prevents endless litigation. (3) The relief must be directly related to the reversed decree or order. Here, B is entitled to restitution under section 144. Principle or Doctrine of 'Restitution' and Section 144 of CPC The order of the first appellate court which has been affirmed by the High Court was unsustainable.
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