transferee pendente lite, attaching decree-holder, etc.) If a plaint is rejected by the Court, then it implies that no adjudication has taken place and, therefore there exists no suit, as a suit means a civil proceeding that is instituted by plaint presentation. The order of the first appellate court which has been affirmed by the High Court was unsustainable. In Kavita Trehans case the court para 16 says that the Law of Restitution encompasses all claims founded upon the principle of unjust enrichment be it in equity or under any law. A receives a decree against B regarding possession of immovable properties and takes possession upon execution of the decree. Section 144 of the code embodying the doctrine of restitution does not confer any new substantive right to the party not available under the general law. In "Ganesh Parshad v Adi Hindu Social Service League, 1975", the court said that the following three conditions must be satisfied: (1) The application for restitution must be in respect of the decree or order which has been subsequently reversed. Before delving into the provision, it is significant to note that the definition of decree under Section 2(2) of the Code of 1908 expressly eliminates order. | Powered by, A deemed decree under CPC, 1908 : an overview, Free Online (Live only) 3-Day Bootcamp On, Weekly Competition Week 1 December 2019, Weekly Competition Week 2 December 2019, Weekly Competition Week 3 December 2019, Weekly Competition Week 4 December 2019, Weekly Competition Week 1 November 2019, Weekly Competition Week 2 November 2019, Weekly Competition Week 3 November 2019, Weekly Competition Week 4 November 2019, Weekly Competition Week 2 October 2019, Weekly Competition Week 3 October 2019, Weekly Competition Week 4 October 2019, Weekly Competition Week 3 September 2019, Weekly Competition Week 4 September 2019, Deemed decree under the Code of Civil Procedure, 1908, Determination of question under Section 144, Invoking arbitration agreements in unstamped documents in the light of Garware Wall Ropes Judgment : Analysis. 229-31. Section 144 doesn't confer any substantive rights. Illustration- A obtained a decree against B for Rs. In these circumstances, the provisions of Section 144, Code of Civil Procedure were not attracted there being no variation or reversal of a decree or order as contemplated by Section 144. However, if the order is not within the four corners of Section 144, a revision can be maintained as it can be considered a "case resolved" under Section 115. What is the Doctrine of Restitution under CPC? - TheLawmatics It is not discretionary but obligatory. necessary to advert to the provision of section 144 of the CPC: 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. Section 144 of the Civil Procedure Code,1908 deals with the provision of restitution. Similarly, the deemed decree should also be appealable by nature. Section 144 CPC - WritingLaw The latter term has been coined with decree to design a statutory fiction for the purpose of providing a divergent meaning to the term decree and thereby covers what the term does not cover expressly. b) a making good of or giving an equivalent for some injury. Pending application(s), if any, shall stand disposed of. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. The Section reads as follows-. The doctrine of restitution as envisaged under the CPC is an enabling provision in consonance with the principles of equity and justice. Therefore, trespassers cannot be granted restitution. Section 144(2) clearly provides that where restitution can be claimed by filing an application in the court, no separate suit shall be filed for it. Order 7 Rule 11 of the Code of Civil Procedure, 1908 lays down the provision for rejection of a plaint. They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. Section 144 Section 144 CPC - Code of Civil Procedure - Application for restitution.. It does not matter whether there is a direction of restitution in the order of the Appellate court or not. Restitution W.r.t. to Civil Procedure Code 1908 - Legal Services India Although "restitution" is not defined in the Code, it refers to the "act of restoring something to its rightful owner." Section 144 CPC : Application for restitution . - Verma Law Associates The doctrine of restitution, therefore, is based upon equitable principles. Court which passed the decree or order shall, on the application of any party entitled to, 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 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, aside or modified. Law Web: Whether court should order restitution if there is no 1996), cert. Section 151 (inherent powers to grant restitution): Other than the jurisdiction to give reparation under section 144, the Court has the authority to issue orders to accomplish justice or to prevent any abuse of court power under section 151 of the CPC. What Is the Doctrine of Restitution in Civil Procedure Code - WritingLaw (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. A gets a decree against B for Rs 5000. The article discusses the concept of deemed decree under the Code of Civil Procedure, 1908. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. Hence, it was urged that once the suit, for injunction was dismissed, it was open to the defendant to. Section 144 of the Code of Civil Procedure is not the fountain source of restitution, it is rather a statutory recognition of a pre-existing rule of justice, equity and fair play. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. Therefore, even if the case is not within the strict provisions of Section 144, the court can grant relief of restitution at its discretion. The section merely regulates the power of the court in that behalf. 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. Jagdish Lal v. M.E. Where the decree or order was modified or reversed in the exercise of appellate, revisional jurisdiction, the court at first instance. It merely regulates the power of the Court in that behalf. Moreover, even if it were to be, assumed that the plaintiff had taken possession of the disputed, land during the pendency of the suit, it was urged that an, application under Section 144 would not lie. Yamuna Bai v. L. Venkoba Rao, AIR 1976 AP 46. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Section 144 CPC [Restitution] Not Attracted When There Is No Variation Or Reversal Of A Decree Or Order, Reiterates SC [Read Judgment] LIVELAW. The word in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order. Hello everyone,Here you will know complete information regarding restitution under section 144 civil procedure code.#lawwithroshni This section regulates the court's power in this regard. Order 21 Rule 98 of the Code of Civil Procedure, 1908 lays down the provision for orders after adjudication. The doctrine of restitution rests on the well-known maxim "actus curiae neminem gravabit", which is simply a way to say that if someone does something wrong, it will be done back. (AIR); Prithvinath Sing v. Suraj Alir (1970), 3 SCC 794, p.799. According to Lord Cairns, One of the first and highest duties of all courts is to take care that the act of the court does no injury to the Suitors The law also imposes an obligation on the party who received the benefit of an erroneous Judgement to make restitution to the other party for what he has lost; it is the duty of the court to enforce this obligation. Extending the scope and applicability of the section 144, the Allahabad High Court in Jogendra Nath Singh v. Hira Shahu held that a case for restitution would fall within the purview of section 144, even when the decree is set aside in a separate suit, or where the court itself sets aside its own ex parte decree. It isthe restoration of something lost or stolen to its proper owner. P. Muthuswamy (Died) By Lrs. And vs Janakiram (Died) By Lrs. And Section 144 CPC : Application for restitution . Save my name, email, and website in this browser for the next time I comment. Whether S 144 of CPC is applicable if there is no variation or reversal Neelathupara Kummi v. Mentharapalla Padippua, 1994 Supp (3) SCC 760: AIR 1994 SC 1591. Both the first appeal as, well as the second appeal were dismissed on 23 March 1982 by. Restitution, in other words, means that a party can return the benefit it has received as a result of a wrongly interpreted decree. One more case on the similar lines is Rakesh Singhal v. Fifth Addl. 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. It is the paramount duty of all courts to ensure that they do no injury to any litigant. The State, therefore, filed an application under Section 144 CPC on 28-2-1983 for restitution of the excess am.leave. A plaint is a pleading by the plaintiff, a presentation of which commences a civil proceeding. Doctrine of Restitution - Section 144 CPC. topics to ensure that readers have access to the most up-to-date The Doctrine of restitution u/s 144 of CPC. | Edu Law Pappu Reddiar v. P.S.V. This explanation, therefore, differentiates the words decree with that of deemed decree. Whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer . 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. There was once a conflict between judicial opinions as to whether Section 144 proceedings were execution proceedings. 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. This has clearly been laid down in number of Supreme Courts cases like Kavita Trehan v. Balsara Hygiene Products Ltd., Gangadhar v. Raghubar Dayal, State Govt. Section 151 does not grant a party the right to apply. Application for restitution - (1) Where and in so far Subhash Chander v. Bodh Raj, AIR 1969 J&K 8. Thus although it cannot be considered a decree, it can be perceived as a deemed decree. Second, if harm has been done, to pay a person for advantages received from him by another. (Buttrsworths: New Delhi, 2001), Schafer Dr. Stephen, Restitutions to Victims of Crime, (Stevens & Sons Ltd., London, 1960), Takwani C.K., Civil Procedure (Eastern Book Company, Lucknow, 2003), Verma Bhupendra, Inherent Power of the Court to Grant Restitution, available at http://www.legalserviceindia.com/article/l419-Inherent-Power-of-the-Court-to-Grant-Restitution.html, Misra Abhinav, The Code Of Civil Procedure, 1908, available at http://books.google.co.in/books?hl=en&lr=&id=GGzjoyf8JBkC&oi=fnd&pg=PA11&dq=restitution+under+civil+procedure+code,+secton+144&ots=idqiDSzdqu&sig=VF9fKauVhk5mAnBVSm76gHczSpY#v=onepage&q=&f=false. The section does not contain all the information. 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. After 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, The application was dismissed on 24 August 1998 by the, executing court. The case of CIT v. Bombay Trust Corporation (1930) requires a special mention as the Privy Council, in this case, held that whenever a person is deemed to be something, the Act of the Parliament requires him to be treated like something which he, in reality, is not. Designed by | Augmetic - Best Website Designing Company, Mahnjibhai Mohanbhai v. Patei Manibhai AIR 1965 SC1477 at 1482: (1965). Restitution under Section 144 of the Civil Procedure Code Section 144 of the code primarily talks about 2 things, Decree and Order. Banchhanidhi Das v. Bhanu Sahuani, AIR 1974 Ori 148 at p. 149: ILR 1973 Cut 498. respondent hand over possession to the appellant. Section 144 of the Code of Civil Procedure 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. In that case, the party against which the erroneous decree was enforced can apply under this section for restitution. | Designed & Developed by SIZRAM SOLUTIONS. This section allows for restitution to be made against not only the litigant but also his legal representatives (e.g. A party applying for restitution must have the right to the benefit of the reversing order or decree; The relief sought must be proper consequential on the reversal, variation or modification of the decree order or decree. While the meaning attached to the term decree has been incorporated under Section 2(2) of the Code of Civil Procedure, 1908, importance must be provided to the term deemed as well. Section 144. 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. The jurisdiction to make restitution is inherent in every court and can be exercised whenever justice of the case demands. Banerji v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128 at p. 129; Jai Berham v. Kedar Nath Marwari, (1921-22) 49 IA 351: AIR 1922 PC 269; L. Guran Ditta v. TR Ditta, AIR 1935 PC 12 at p. 13; Gangadhar v. Raghubar Dayal, AIR 1975 All 102 at pp. The main object of the provision of restitution Restitution avoids multiplicity of the cases and prevents endless litigation. These three conditions must be met before restitution under this section can be ordered: Restitution must be granted if these conditions are met. Looking for a flexible role? The doctrine of restitution refers to the repair of a decree in which the law imposes an obligation on the parties where the degree of harm has been perpetrated to provide restitution to that party for what they have lost to the extent that they may be restored. Last modified May 19, 2020, Your email address will not be published. It obligates a court to execute a responsibility to ensure that if a person is hurt as a result of a mistake made by the court, he is returned to the position you would have held but for that error. Do you have a 2:1 degree or higher? The Amendment Act, 1976 added an Explanation that defines the expression "Court that passed the decree/order". 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. Therefore, after the error is erased, the decree retains its traits under Section 2(2), and thus the legislation intends to refer to the determination of question under Section 144 as a deemed decree. It is therefore appealable. The Court further held that unless an order amounts to adjudication, the same cannot be considered as a decree and therefore no appeal can be filed against such an order. Where and to the extent that a decree or 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, as far as possible, place the parties in the position which they would have occupied but for such decree or order. The court's inherent authority is discretionary. Ramanatha Iyer (AIR 1963 Mad 45 (F.B. Law Savers covers a wide range of legal They were according to one view. The real test is whether on account of an act of the party persuading the court to pass an order, or an unsustainable holding by the Court, there has resulted one party gaining an advantage which it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the court and the act of such party. The Oxford English Dictionary defines restitution as "the act of returning an item to its rightful owner. Thetheoryofrestitutionisfoundedonthemaxim"actuscuriaeneminemgravity,"whichmeans that the actofthecourtmustnotdoinjurytoanybody. the application for restitution shall be instituted in the court of the first instance. 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. Clause 4 of Rule 58 which invokes the concept of deemed decree under Order 21 Rule 58 states that Where any claim or objection has been adjudicated upon under this rule, an order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. A bare reading of this clause reveals that the adjudication taking place under Rule 58 will not be resulting in a decree under Section 2(2) of the Code, instead will be a deemed decree as Clause 4 expressly mentions. It also applies to circumstances that do not fall squarely within the purview of section 144. Uttar Pradesh - Substitute the following for section 145; "145. 108-09 (FB); Kavita Trehan V. Balsara Hygiene Products Ltd. (1994) 5 SCC 38. Paragon . Disclaimer: This essay has been written by a law student and not by our expert law writers. d. Section 144 of CPC provides power to the civil court to relegate the parties to a position that existed . In its etymological meaning, restitution means to return to a party the benefit he has lost in the execution of direct consequence of a decree. B has the right to restitution of property under this section, even though the decree of the appeals court does not provide any direction. Another case is Prasad v. British Insulated Calendars Cables Ltd., in which the standard rent fixed under the West Bengal Premises Rent Control Act 1950, was reduced in appeal, by the Rent Controller. See Drinkard v. Johnson, 97 F.3d 751, 755-56 (5th Cir. Binayak Stain v. Ramesh Chandra, AIR 1966 SC 948 at p. 950, Lal Bhagwant Singh v. Kishen Das, AIR 1953 SC 136 at p. 139 in 1953 SCR 559. To cite Blacks Law Dictionary, the term has been defined in three senses, viz. Binayak v. Ramesh Chandra, AIR 1966 SC 948: Lal, Bhagwant Sing v. Kishen Das AIR 1953 SC 136. Section 144 is an empowering provision for the courts to order restitution whenever an order or a decree appears to be reversed by means of an appeal, or revision, or other proceedings. 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. He then executes the order. This CRP is directed against an order passed on an application for restitution filed under Section 144 CPC. You have successfully registered for the webinar. The inherent powers exercised under Section 151 of the Civil Procedure Code are discretionary. It prevents the matter from dragging on for years. To export a reference to this article please select a referencing stye below: This selection of law content including essays, dissertations, problem questions, and case summaries is relevant to Indian law students and to those studying Indian law from outside of India. Thus in such scenarios, the only miscellaneous appeals will be applied in place of regular appeals. 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. The wrong order should be respected and not kept alive. Administrative law is that branch of law which concerns the functioning of the administration and the relation between individuals and Environmental Protection and Sustainable Development. AIR 1922 PC 269. In evaluating the rival submissions, it would be. Section 144, 145 CPC | Application for restitution Enforcement of 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 . For example, laying down an important principle, the Court in Montharampallipadipura Attakoya v. Neelathupura Kunhiseethikoya Thangal held that the recourse to the principle of restitution will be of no avail as against a party to the suit who get the property otherwise than under the decree or the order of the court. But, wherever it is impossible to restore the aggrieved party to the earlier position or undo the effect of a wrong order, the court can simply choose to not disturb its earlier order. And the erroneous judgment has been razor set aside or modified. [CDATA[*/ var d = new Date(); var n = d.getFullYear(); document.getElementById('getYear').innerHTML = n; /*]]>*/ Law Savers. 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. 106-07 AIR 1970 SC 70 at pages. Binayak v. Ramesh Chandra, AIR 1966 SC 948; Lal Bhagwant Singh v. Kishen Das, AIR 1953 SC 136. 5 no finding was, On the other hand, learned counsel appearing on behalf of, the respondent supported the judgment of the first appellate, court and the High Court by submitting that it was the case of, the first respondent that the appellant had taken possession of, the suit land after the order of injunction was passed at the, interlocutory stage. The term adjudication means determining the point of law that is in conflict. Section 144 CPC [Restitution] Not Attracted When There Is No - LiveLaw Meaning Doctrine of restitution Section 144 states that: Actus curiae neminem gravabit Conditions Who may apply? A got possession of the immovable property in execution. Whether transfer of property made in violation of injunction order is valid? For example, in Jamaluddin v. Mirza Quader Baig, the Court held that it can restore possession in exercise of its inherent powers under Section 151 of CPC and there was no necessity of filing a petition under Section 144 of CPC. The ability to provide restitution is not limited to section 144; the court has an inherent . It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144, Section 144 opens with the words "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.", Rodger v. Comptoir decompile de Paris:One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression, the act of the court is used, it does not mean merely the act of the primary court or any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case.. information in the field- Learn More. 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 . of A.P. 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. SECTION(S): 144 CPC, 28, 4, 56: GENRE: Domestic Tax: CATCH WORDS: capital vs. revenue receipt, restitution: . JUDGMENT 1. Home Law and Ethics RESTITUTION (SECTION 144 OF CIVIL PROCEDURE CODE). Banerji v. Kuchwar Lime & Stone Co. Ltd., AIR 1941 PC 128; Ramji Seth v. Smt Zohra, 1983 All LJ 322. Oxford English Dictionary defines restitution as an act of restoring a thing to its proper owner. (2) That judgment has been subsequently reversed, modified, or set aside. All courts must protect litigants. It allows for the reinstatement of a person who has been wrongfully dispossessed, deprived, or dispossessed of land, tenement, or property. 3. A second appeal can also be made on a "substantial matter of law". Section 144 enables the successful party to be placed in status quo ante and empowers the court to order restitution when a decree or an order is varied or reversed in any appeal, revision or other proceeding. It is not limited to cases that are covered by Section 144. According to Webster Dictionary Meaning of Restitution, It is an act of restoring or a condition of being restored such as . If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Just like the rejection of plaint, determining a question under Section 144 is also a deemed decree as having been expressly provided by Section 2(2) of the Code. The Court's responsibility or jurisdiction to give reparation is inherent in the Court's broad jurisdiction to act fairly and lawfully under the circumstances toward all parties concerned.
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