E.S. Venkataramiah, J.
1. Opponent No. 1 in Misc. Case No. 48 of 1963 on the file of the Munsiff. Chikodi, is the appellant in this second appeal. The above appeal arises out of application filed by Rukmini Bai (Respondent 1 in this appeal) for restoration of possession of a house situated at Nippani.
2. The facts of the case are briefly these: One Narayana who was the husband of Opponent No. 1 (appellant herein) instituted a suit in Suit No. 138 of 1947 on the file of the Civil Judge, Jr. Dn. Chikodi, for recovery of possession of the house referred to above against a tenant. The said suit was decreed and he filed Darkhast application No. 177 of 1949 to recover possession of the property from the tenant. During the pendency of the said Execution application, applicant Rukmini Bai instituted Reg. Suit No. 189 of 1951 on the file of the same court for an injunction restraining Narayan from enforcing the decree passed in Suit No. 138/47 on the ground that she was the owner of the house and therefore entitled to possession of the same. The suit filed by Rukmini Bai was dismissed in the year 1953. After the dismissal of the said suit. Narayan obtained possession of the house in execution of the decree passed in Suit No. 138/47 on 26-7-1955. Subsequent to that date the appeal filed by Bukmini Bai in C. A. 59 of 1953 on the file of the District Court, Belgaum. against the decree passed in Suit No. 189 of 1951 came to be allowed on 29-9-1962. The appellate court decreed the suit of Rukmini Bai for injunction. There was however no decree for possession. It may be mentioned here that during the course of the appeal Narayan died leaving behind him Kamala Bai, Opponent 1 as his legal representative and she was impleaded as the respondent in place of Narayan In the appeal filed bv Rukmini Bai. After that appeal was allowed, the applicant Rukmini Bai filed the application under Section 144, Civil P. C. out of which this appeal arises for restoration of the possession of the house. Respondent 2 is a tenant residing in the house. The Munsiff granted the application. The appeal filed by Opponent 1 against the order of the Munsiff was dismissed by the Civil Judge. Hence this appeal.
3. Sri G. D. Shirgurkar, learned counsel for opponent 1 (appellant herein) urged that the courts below had no jurisdiction to pass an order in favour of the applicant under Section 144. Civil P. C. His contention was that it is only when a certain benefit had been derived by a party under an erroneous decree or order which was later on set aside by a superior court, an application under Section 144, Civil P. C. would He for restoration of the said benefit to the rightful party, According to him, in the instant case, Naravan did not get possession of the property under the decree passed jn Suit No. 189/51 but under a decree passed in Suit No. 138/47. No benefit actually was derived by Naravan under the decree passed in Suit No. 189/51 which alone was later on reversed by the appellate court. In support of his contention, he tallied upon a decision of the Supreme Court in Lal Bhagawant Singh v. Sri Kishen Dass, : 4SCR559 in which doctrine of restitution was explained as hereunder:--
'..... Doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case'. It was also observed in that case that where the judgment-debtor fails to show that the sale of his property was in substance and truth a consequence of the error in the decree that was reversed he could not invoke the aid of Section 144.
4. I feel that the decision of the Supreme Court relied on by Sri Shirgurkar is clearly in his favor As long as the decree in Suit No. 138/47 was not reversed or altered in an appellate court, the benefit derived by Narayan under that decree could not be the subject matter of an application under Section 144, Civil P. C.
5. Sri A. V. Albal, learned counsel for respondent 1 however, contended that on the merits opponent 1 had no case at all since her rights had become concluded by the judgment in the appeal filed against the decree passed in Suit No. 189/51 and it was not open to her to contend in these proceedings to the contrary. It is unnecessary to express any opinion on the above contention since I have not gone into the merits of the case while disposing of this appeal. This appeal is disposed of on a limited ground, namely the maintainability of the application under Section 144, Civil P. C. If Rukmini Bai has any subsisting right which can be enforced under the decree passed in Suit No. 189/51, it is open to her to enforce it in accordance with law. But a proceeding under Section 144. Civil P. C. could not be certainly a remedy in the circumstances of the case.
6. In the result, the appeal is allowed, the judgments and decrees of the courts below are set aside and the application filed under Section 144. Civil P. C. is dismissed. There will, however, be no order as to costs in all the three courts.