1. This appeal is directed against the order in I.A. No. 365 of 1971 (in O.S. No. 30 of 1961) filed by the 1st defendant under Section 144, Civil P.C. (1908) for restitution of house property, o the file of the Principal Subordinate Judge, Kurnool. The L.Rs. of the 1st defendant are the appellants. O.S. No. 30/61 was decreed on 26-8-1963. The plaintiffs executed the decree in E.P. No. 54/64 and the plaintiff decree-holder was put in possession of the suit house on 7-10-1963.
2. The facts in the suit for purposes of this appeal in brief are stated hereunder. The plaintiff's father, executed a will on 15-12-1938 and under that will, the plaintiff was the sole legatee. His mother the 2nd defendant, under the will, was appointed as the executrix. One Subramanya Rao is the posthumous son of the testator, who was not a party to the suit in O.S. No. 30/61. Notwithstanding the mandates in the Will, the 2nd defendant alienated the suit house for a sum of Rs. 16,000/- on 27-7-1951 in favour of the 1st defendant who, having paid Rs. 8,000/-, deferred payment of the balance till such time Subramanya Rao ratified the sale transaction, after attaining majority. Meanwhile the 1st defendant mortgaged the suit house on 29-1-1952 to the 3rd defendant. On 17-4-1961 the suit (O.S. No. 30/61) was instituted by the plaintiff for possession of the suit house.
3. The trial court found, the sale in favour of the 1st defendant was a transfer but under the personal law of the parties was son's legal necessity. It held the suit house was Subbarao's (the plaintiff's father) self acquired property. The Will, dated 18-12-1938 of late Subba Rao was genuine and valid and so holding the trial court decreed the suit. Against this decree the 3rd defendant preferred an appeal (A.S. No. 533/63) to this Court, which was allowed by Vaidya, J., by his judgment dated 29-2-1968. The learned Judge held, the suit house was coparcenary property and not the self-acquired property of Subba Rao, and therefore, under the Hindu Law, obtaining then the will was inoperative. The alienation by the 2nd defendant in favour of the 1st defendant, was held as voidable but not void. The suit however was dismissed having been filed on 17-4-1961, i.e., beyond three years after the plaintiff attained majority, and stood barred under the Article 44 of the Limitation Act.
4. A further appeal, L.P.A. No. 119/68 was dismissed by Gopalrao Ekbote, J., (as he then was) and Ramchandra Rao, J., on 6-8-70. In their judgment, they affirmed the finding that the suit house was coparcenary property. The suit for possession, in the absence of Subramanya Rao, was held misconceived, and on ground other than what was held by the trial Judge and Vaidya, J, they dismissed the suit. After the disposal of the L.P.A. a partition suit, it appears, has been filed by the plaintiff in the year 1971 which, it is stated before us, is pending decision.
5. I.A. No. 365/71 was filed by the 1st defendant for restitution, in which it was alleged, on 7-10-1963 the plaintiff decree-holder in execution was ut in possession by dispossessing the applicant. The decree having been reversed by the appellate Court, the applicant prayed for restitution by putting him in possession of the house under Section 144 Civil P.C. He also claimed mesne profits of Rs. 23,675/-. This petition was resisted by the respondents in this appeal.
6. The trial court having stated the facts, held :
'I think it is a fit case to consider the equities arising in the case before automatically ordering restitution................. The right of the other person to seek for restitution whether it is under a valid title or not may also be gone into in the interests of justice and on equitable principles.' Further, regarding the sale in favour of the 1st defendant, the trial court held : 'is not valid and he should be treated as a trespasser.' 'The suit was not contested by the 1st defendant on the ground of prescription of his title by adverse possession.' Lastly, 'it is not desirable that in the ends of justice that a trespasser should be restored to possession though indirectly he should be said to have succeeded in the suit.'
The lower court dismissed the petition stating, it was not a fit case for ordering restitution. The correctness and legality of this order by the appellant is challenged in this appeal.
7. Section 144, Civil P.C. is based upon a doctrine which recognises as one of the highest duties of a court to take care that its acts do not injure any of the suitors and if any injury is caused, it is duty of the court to undo the wrong. An order of restitution, as contemplated under Section 144, Civil P.C. (1908) would be consistent with the principles of doctrine of restitution which 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 it is the duty of the court to enforce that obligation unless restitution would be contrary to the real justice of the case. These principles have been very succinctly laid down by the Supreme Court in the case of Bhagwant Singh v. Sri Kishen Das, : 4SCR559 . Earlier, the Privy Council, i L. Guran Ditta v. T.R. Ditta, AIR 1935 PC 12, relying on the decision in Rodger v. Comptoir D'Escompte De Paris, (1871) 3 PC 465 Held :
'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.' This principle was incorporated in Sec. 583 of the Code of Civil Procedure, 1882 Section 144(1) of the present Code (Code of Civil Procedure, 1908) is the corresponding section which incorporates this rule of restitution. The Privy Council in Jai Bherham v. Kedar Nath, AIR 1922 PC 269 held that such a power is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved. In the case of Guran Ditta v. T.R. Ditta, AIR 1935 PC 12, adverting to the powers of the Court, Lord Atkin had stated that the observations in Rodger v. Comptoir D'Escompte De Paris, (1871) 3 PC 465 have grounded as 'practice in India.' Therefore, whether as a matter of practice or as a matter of inherent jurisdiction as a doctrine of restitution, Courts in India have always considered that it is one of the sacred duties of theirs to see that their acts cause no injury to the suitors and while considering the principles of restitution, the Supreme Court in the case referred to earlier, has observed restitution is based upon to cause real justice to the parties.
8. Under Section 144, Civil P.C. before any restitution is ordered, the following conditions must be satisfied (1) That the applicant must be a party to the litigation which has terminated according to law: (2) that he has either lost something or been deprived of something by reason of the decree of order which has been subsequently varied or reversed; (3) that on the final pronouncement of his rights he is entitled to the benefit or restitution.
9. The argument of Mr. Babulreddy, is that the 1st defendant did not carry the matter by way of an appeal and therefore, he is not entitled to restitution. In Gurunath v. Venkatesh, AIR 1937 Bom 101, a similar argument was advanced before Ranganekar, J., and the learned Judge observed :
'Therefore, if there is an appeal from a decree, even though that appeal is made by one party in which some other party equally interested is not joined, but if the appeal is on ground of common to both of them, then the reversal or the variation in the decree in favour of the appellant would operate for the benefit of the other party, and in that way, therefore, he would be entitled to contend that he was a party to the suit entitled to benefit by way of restitution.'
In fact, in 1908, in Ganga Prasad v. Brojo Nath Das, (1908)12 Cal WN 642, a case which arose under 1882 Civil P.C. the Privy Council observed the expression 'any party' is not confined to parties to the appeal in which the decree has been reversed or modified:
'It includes every person against whom the decree appealed from was passed, though he was not a party to the appeal, provided the appeal is in effect and substance in favour of such person.' Therefore, in India, since 1871, all along for a period of 100 years as practice and as a matter of inherent jurisdiction, Courts have understood that even if the suitor filed no appeal he is entitled to the benefit for reversal of the decree.
10. In the circumstances, of the case, which we have elaborated earlier, the alienation in favour of the 1st defendant was considered as only voidable and not void, and therefore, he is entitled to the benefit of the reversal of the decree and the 1st defendant should be restituted possession of the property till such time the alienation in his favour is avoided by proceedings known in law. In fact we are informed that such a suit is pending between the parties. Therefore, we have no hesitation in holding that till such time the above transaction is avoided, the 1st defendant is entitled to possession.
11. We, therefore, allow the application I.A. No. 365/71 and it is ordered as prayed for including the mesne profits. The order of the lower court is set aside. The appeal is, allowed with costs.
12. Appeal allowed.