(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the order and decreetal order passed in I.A.No. 268 of 206 in A.S.No.24of 2016, dated 23.09.2016 on the file of Additional Subordinate Judge, Chengalpattu.)
1. The above Civil Revision Petition has been filed by the decree holder in E.P.No.6 of 2015 in O.S.No.668 of 2014 on the file of District Munsif Court, Chengalpattu, challenging the fair and decreetal order passed in I.A.No.268 of 2016 in A.S.No.24 of 2016 on the file of Additional Subordinate Court, Chengalpattu.
2. The revision petitioner filed the suit in O.S.No.668 of 2014 for delivery of possession. Since the respondent, who is the defendant in the suit, remained absent, they were set exparte and an exparte order was passed on 09.04.2015. Thereafter, the respondent filed an application in I.A.No.1515 of 2015 to condone the delay of 102 days in filing the application to set aside the exparte decree.
3. After contest, he Trial Court dismissed the application on 05.01.2016.
4. Pursuant to the decree passed in O.S.No.668 of 2014, the decree holder-revision petitioner filed an Execution Petition in E.P.No.6 of 2015. The Trial court dismissed the application in I.A.No.1515 of 2015 on 05.01.2016. On the very same day, the Execution Petition in E.P.No.6 of 2015 was also ordered. Pursuant to the order passed in the Execution Petition, delivery warrant was issued on 06.01.2016.
5. Challenging the orders passed in I.A.No.1515 of 2015, the respondent-defendant filed a Civil Revision Petition in C.R.P.(NPD) No.60 of 2016 and also filed a Civil Revision Petition in C.R.P.(NPD) No..793 of 2016, challenging the order passed in E.P.No.6 of 2015. This court, by common order dated 01.07.2016, allowed both the Civil Revision Petitions and set aside the exparte decree passed in O.S.No.668 of 2014.4
6. As against the common order passed in C.R.P.(NPD) Nos.60 of 2016 and 793 of 2016, the revision petitioner filed appeals before the Hon'ble Supreme Court of India in Civil Appeal Nos. 19509 and 19510 of 2016 and the Apex Court, by order dated 29.07.2016, dismissed both the appeals.
7. It is also pertinent to note that this court in C.M.P.No.316 of 2016 in C.R.P.(NPD) No.60 of 2016, on 08.01.2016, while ordering notice of motion for a period of three weeks in the Civil Revision Petition, granted an order of interim stay till then. On the very same day, i.e., on 08.01.2016, the Bailiff in E.P.No.6 of 2015 in O.S.No.668 of 2014, submitted a report before the Executing Court stating that delivery has been effected. In the report, there is an endorsement made by the defendant that he would take away the movable properties at his own responsibility. When this fact was intimated to this court, this court modified the order of stay already granted to the extent that the parties have to maintain status quo. There is also an observation that the court is convinced that the decree holder has taken possession of the property.
8. After the disposal of the Civil Revision Petition in C.R.P.(NPD) No.60 of 2016 and 793 of 2016, the defendant filed an application under section 144 read with section 151 of CPC in E.A.No.74 of 2016 in E.P.No.6 of 2015 for restitution of possession.
9. The case of the defendant in E.A.No.74 of 2016 was that the plaintiff took possession of the property pursuant to an exparte decree and when the exparte decree itself was set aside by this court in C.R.P.(NPD) Nos.60 of 2016 and 793 of 2016, which was also confirmed by the Hon'ble Supreme Court of India in S.L.P.(Civil) Nos.19509 and 19510 of 2016, they are entitled for restitution of possession. The plaintiff filed their counter and contested the application in E.A.No.74 of 2016 and the Executing Court, taking into consideration the case of both the parties allowed the application and directed the plaintiff-decree holder to hand over possession of the suit property to the defendant.
10. Aggrieved over the order passed in E.A.No.74 of 2016, the decree holder filed an appeal in A.S.No.24 of 2016 on the file of Additional Sub Court, Chengalpattu. In the said appeal, the plaintiff filed an application under Order 41 Rule 5(1)(2) read with section 151 of CPC to stay all further proceedings of the order passed in E.A.No.74 of 2016 in E.P.No.6 of 2015 and to pass an interim order pending disposal of the appeal.
11. In the affidavit filed in support of the application in I.A.No.268 of 2016, the plaintiff has stated that unless an order of stay is granted, they will put to irrepairable loss and hardship. The defendant filed their counter denying the averments stated in the affidavit filed in support of the application and also stated that the appeal has been filed by the plaintiff only to drag on the matter when the very decree pursuant to which the execution arose itself was set aside and the very Execution Petition does not survive and is to be closed.
12. The Lower Appellate Court, took into consideration the case of both the parties, dismissed the application and also observed tat the relief sought for by the defendant is mandatory on the part of the court ordering restitution of possession.
13. Mr.R.Thiagarajan, learned counsel appearing for the petitioner submitted that since the Lower Appellate Court had dismissed the stay petition and in the case of the respondent taking possession of the property, then the appeal filed by the plaintiff would become infructuous. However, the learned counsel submitted that the petitioner-plaintiff is willing to surrender the keys of the premises before the Lower Appellate Court and the party, who succeed in the appeal, may be directed to take possession of the premises. In support of his contentions,the learned counsel relied upon the following judgments:-
(i) 1982 (3) SCC 484 (Mool Chand Yadav v. Raza Buland Sugar Co. Ltd.), wherein, the Hon'ble Apex Court held as follows:
4. We heard Mr S.N. Kacker, learned counsel for the appellants, and the respondents appeared by Caveat through Mr Manoj Swarup, Advocate. We are not inclined to examine any contention on merits at present, but we would like to take notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the FAFO is allowed obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr Manoj Swarup, learned Advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the Order dated August 6, 1982 directing the appellants to hand over the possession of the room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad. Mr Manoj Swarup requests that both the earlier and later appeals should be heard together as early as possible. We order accordingly and request the High Court if it considers proper in its own discretion to hear both the appeals as expeditiously as possible in order to avoid the continuance of the boiling situation. The appeal stands disposed of. There shall be no order as to costs."
(ii) 2005 (1 ) SCC 705 (Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.) wherein, the Hon'ble Apex Court held as follows:
"18.That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons and Co. (I) Ltd. v.Sahi Oretrans (P) Ltd. [(1999) 2 SCC 325] this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property."
14. Mr.Anand Venkatesh, learned counsel appearing for the respondent submitted that when the decree under which the plaintiff took possession of the property itself has been set aside by this court in the civil Revision Petitions, the provisions of section 144 of CPC is mandatory, therefore, the Lower Appellate Court has rightly dismissed the stay petition filed by the plaintiff-decree holder. In support of his contentions, the learned counsel relied upon a judgment reported in 2003 (8) SCC 648 South Eastern Coalfields Ltd. v. State of M.P.,) wherein, the Hon'ble Apex Court held as follows:
27. Section 144 CPC is not the fountain source of restitution, it is rather a statutory recognition of a pre-existing rule of justice, equity and fair play. That is why it is often held that even away from Section 144 the court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari [(1922) 49 IA 351 : AIR 1922 PC 269] Their Lordships of the Privy Council said: (AIR p. 271)
It is the duty of the court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed . Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved.
Cairns, L.C. said in Rodger v. Comptoir D'Escompte de Paris [(1871) 3 PC 465 : 7 Moo PCC NS 314 : 17 ER 120] : (ER p. 125)
[O]ne 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 of 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.
This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it (A. Arunagiri Nadar v. S.P. Rathinasami [(1971) 1 MLJ 220] ). In the exercise of such inherent power the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.
15. Section 144 of the CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. 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. Under section 144 of the CPC, a successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, would rather defeat the same. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the decree would not have existed. Section 144 CPC is a statutory recognition for pre-existing rule of justice, equity and fair play.
16. When the exparte decree, pursuant to which the decree holder took possession of the property itself has been set aside by this court in the Civil Revision Petitions and until the suit filed by the plaintiff is decreed in their favour, they cannot continue to be in possession of the property.
17. The Lower Appellate Court also considered the order passed by the Executing Court in E.A.No.74 of 2016 and concluded that the application under section 144 of CPC was correctly considered by the Executing Court and the same was decided according to law.
18. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel for the petitioner, since the facts and circumstances are completely different in the present case, the same are not applicable to the present case.
19. Since the relief granted by the Executing Court is an equitable relief, it is mandatory on the part of the court to order restitution, therefore, the Lower Appellate Court had rightly declined to grant an order of stay. The findings of the Lower Appellate Court are perfectly correct.
20. In these circumstances, I do not find any error or irregularity in the order passed by the Executing Court. The Civil Revision Petition is devoid of merits and i s liable to be dismissed. Accordingly, the Civil
Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.