Skip to content


Mst. Fatima Khatoon Vs. Swarup Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1720 of 1983
Judge
Reported inAIR1984Cal257,88CWN773
ActsCode of Civil Procedure (CPC) , 1908 - Section 144 - Order 9, Rule 13
AppellantMst. Fatima Khatoon
RespondentSwarup Singh
Appellant AdvocateAsoke Kumar Banerjee and ;Tapas Kumar Das, Advs.
Respondent AdvocateTarun Chatterjee and ;Bijon Majumdar, Advs.
DispositionRevision dismissed
Cases ReferredCourt. (See Jagendra Nath v. Hira Sahu
Excerpt:
- .....set aside the opposite party filed an application under section 144 read with section 151 of the code for restitution. this was opposed by the plaintiff petitioner. all his objections being overruled, the learned judge, 5th bench, city civil court, calcutta by the order impugned dated june 7, 1983 passed in misc. case no. 234 of 1980 directed restitution in favour of the opposite party. feeling aggrieved the petitioner has preferred the present revisional application.4. mr. banerjee, appearing in support of this revisional application, has contended that the court in the present case had no jurisdiction to direct restitution under the provisions of section 144 of the code. according to mr. banerjee, section 144 contemplates restitution only when the decree has been varied or reversed.....
Judgment:

Anil Kumar Sen, J.

1. Thus Rule obtained on a revisional application raises a short point as to whether a Court setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code can restore back possession to the judgment-debtor who in the meantime had been dispossessed in execution of such an ex parte decree.

2. The facts are not in dispute. Thepresent petitioner before us obtained an exparte decree against the opposite party inan ejectment suit and recovered possessionin execution thereof. In the meantime theopposite party filed an application underOrder 9, Rule 13 of the Code. That application succeeded and the ex parte decree-was set aside.

3. In view of the fact that the decree had been so set aside the opposite party filed an application under Section 144 read with Section 151 of the Code for restitution. This was opposed by the plaintiff petitioner. All his objections being overruled, the learned Judge, 5th Bench, City Civil Court, Calcutta by the order impugned dated June 7, 1983 passed in Misc. Case No. 234 of 1980 directed restitution in favour of the opposite party. Feeling aggrieved the petitioner has preferred the present revisional application.

4. Mr. Banerjee, appearing in support of this revisional application, has contended that the Court in the present case had no jurisdiction to direct restitution under the provisions of Section 144 of the Code. According to Mr. Banerjee, Section 144 contemplates restitution only when the decree has been varied or reversed by a superior Court or where it is set aside in an independent suit. This section, Mr. Banerjee contends, does not contemplate any restitution when the decree is set aside by the Court which passed it under Order 9. Rule 13 of the Code. Mr. Banerjee refers to the amended provision in Section 144 in support of his contention.

5. On a careful consideration of the point thus raised and particularly in the light of the amendments incorporated in Section 144 of the Code from time to time, we are unable to accept such a contention. The power or the jurisdiction of a Court to restitute a judgment-debtor to possession when a decree or order, in terms whereof he had been dispossessed had been varied or reversed does not really emanate from Section 144 though the said provision recognises such a power in Court and lays down the procedure therefor. Mr. Banerjee had been fair enough to concede that even if we accept his contention and hold that the Court had no power to direct restitution in terms of Section 144 of the Code that would not render the order wholly beyond jurisdiction because the Court has always the inherent power to put the parties back to the position which they would have occupied but far the decree so varied or set aside.

6. But even on the actual issue raised by Mr. Banerjee we are unable tp accept his contention that a Court setting aside a decree under Order 9, Rule 13 of the Code cannot invoke powers under Section 144 thereof to direct restitution. The recentamendment of the provision has resolved the conflict in judicial decisions on the point and in our view after such amendment there is no further scope for contending as such. Before recent amendment the section provided 'where and in so far as a decree is varied or reversed, the Court of the first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made.....'On the terms of the section as it then stood there was a clear divergence in judicial opinion as to the import and meaning of the term 'varied' or 'reversed'. Chief Justice Rankin in the case of Gopal Parui v. Swarna Bewa, (1930) 34 Cal WN 707 : (AIR 1931 Cal 14) put a restricted meaning when he held that in view of the usual connotation the term 'varied' or 'reversed' must mean variation or reversal by a superior Court. Accordingly, the learned Chief Justice took the view that Section 144 would not be available where the order or the decree has been set aside in a proceeding under Order 9, Rule 33 of the Code or in an independent suit. This view, however, was not shared by many other High Courts. Even some of the Judges of this Court felt reluctant to accept such a restricted construction of Section 144 (See Ramanath Karmakar v. Sk. Asanullah. AIR 1931 Cal 42). The Madras and Allahabad High Courts were in favour of a liberal construction of Section 144 and held that the section is wide enough to include reversal or variation otherwise than by a superior Court. (See Jagendra Nath v. Hira Sahu, AIR 1948 All 252, (FB)). To remove this conflict in judicial opinion and to adopt the liberal construction, Section 144 of the Code has now been amended. On the terms of the amended provision 'where and in so far as the decree or order is varied or reversed in an 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 otherwise cause such restitution to be made.....'.

After this amendment it is quite clear that in order to be entitled to restitution,, the order or the decree need not be varied or reversed in an appeal or revision or in other words by a superior Court. Such restitution would be available where the orderor the decree is varied in any other proceeding like review or under Order 9, Rule 13 of the Code. All the controversies on the point have thus been set at rest by the amendment.

7. Incidentally it was suggested by Mr. Banerjee that even on the terms of the amended provision since setting aside of a decree or order is referable to a suit only and not to a proceeding, therefore, Section 144 cannot be invoked in a case like the present one where the decree has been set aside in a proceeding under Order 9, Rule 13. According to Mr. Banerjee the ex parte decree not having been varied or reversed but being only set aside in the proceeding under Order 9. Rule 13 of the Code, the first part of Section 144 has no application. Though ingenuous we are unable to accept this contention because a case like the present one, in our view, would come well within the first part of the amended provision, namely, being varied or reversed in other proceeding. Tn an appeal or a revision the superior Court in reversing the decision of the lower appellate Court really sets it aside. The words varied or reversed have been used having regard to the effect or result of the proceedings set out Therefore the term 'reversal' cannot be interpreted to exclude setting aside of a decree or order in a proceeding like one under Order 9, Rule 13. The points raised by Mr. Banerjee in support of this application are clearly unsustainable. The points raised, therefore, fail. The revisional application fails and is dismissed. The Rule is discharged.

8. There will be no order as to costs.

Prabir Kumar Majumdar, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //