JUDGMENT 1. THIS appeal is directed against an order allowing the defendant respondent's prayer for restitution consequent on the setting aside of an exparte decree passed in the suit. Plaintiff appellant instituted a suit for specific performance of contract in the second Court of the Subordinate Judge at Alipore, being Title suit No. 58 of 1970, inter alia, praying for specific performance of contract for sale of the properties described in schedule 'a' to the plaint, and for possession of the same after execution of the proper deed of transfer; alternatively, the plaintiff prayed for recovery of a sum of Rs. 1,12,314. 83 paise and for declaration of a charge upon the property described in schedule 'a' which is a cinema House, known as aleya Cinema, and for other reliefs. The suit was decreed exparte on 24th november, 1970, and the defendant was directed by the decree to execute and register a deed of conveyance in respect of the property described in the schedule 'a' to the plaint in favour of the plaintiff within a certain period. The document not having been executed by the defendant within the aforesaid period, plaintiff applied for execution of the decree on Jan. 20, 1971. This was registered as Title Execution case no. 3 of 1971. The deed of conveyance was thereafter prepared, sealed and executed on 27. 2. 1971 and was then presented to the District Registrar, Alipore for registration. The document was duly registered and on 30. 3. 71 plaintiff applied for delivery of possession of the property and a writ for delivery of possession was issued under order 21, rule 35 of the Code of Civil Procedure on the same day. Possession appears to have been delivered on April 12, 1971, and on the following day, respondent filed an application under order 9 rule 13 of the Code for setting aside the decree. This was registered as Misc. Case No. 28 of 1971 and the learned Sub Judge by his order dated 23. 10. 71 allowed the application on contest and the exparte decree was set aside. Against that order, the appellant moved this court and obtained a rule, being Civil Revision Case No. 3080 of 1971. This was registered as Misc. Case No. 28 of 1971 and the learned Sub Judge by his order dated 23. 10. 71 allowed the application on contest and the exparte decree was set aside. Against that order, the appellant moved this court and obtained a rule, being Civil Revision Case No. 3080 of 1971. The rule was discharged on 6th January, 1972, and on the same date respondent applied under section 144 read with section 151 of the Code for restitution of the property transferred, which was registered as Misc. Case No. 1 of 1972. The appellant thereafter made an unsuccessful attempt to obtain leave to appeal to the Supreme court and an application for special leave was also refused on 6th May, 1972. The application for restitution was heard by the learned Sub-Judge 7th Court, Alipore, who by his order dated May 6, 1972. Allowed the application and directed that the respondent be put into ownership and possession of the disputed property that was delivered to the appellant on the basis of the exparte decree. The present appeal is directed against this order of restitution. 2. THE learned Sub Judge, did not record any evidence in this case and it appears from the order under challenge, that the restitution as such was not opposed by the present appellant. The application appears to have been contested only on one point viz., the plaintiff appellant was in possession of the Cinema House as its Manager under the respondent from before the decree and he now apprehends that he may be thrown out and be divested of his managerial responsibility, if the prayer for restitution is allowed. Learned Sub judge refused to accept this contention on the ground that this was an independent relationship outside the scope of enquiry in an application under section 144 of the Code of Civil Procedure, even though such relationship concerned the property in dispute. Learned subordinate Judge accordingly directed that the property be restored to the possession of the respondent. Mr. Bankim Chandra Dutta, learned Advocate appearing for the appellant challenged the statement in the Trial Courts judgment that the restitution as such was not opposed by the opposite party. Learned subordinate Judge accordingly directed that the property be restored to the possession of the respondent. Mr. Bankim Chandra Dutta, learned Advocate appearing for the appellant challenged the statement in the Trial Courts judgment that the restitution as such was not opposed by the opposite party. In an affidavit affirmed by the appellant in the connected Rule before this court on May 22, 1972, it was asserted that neither the petitioner nor his advocate ever conceded this point in the court below and the learned subordinate Judge was wrong in assuming that the appellant did not oppose the order for restitution (vide para. 5 of the affidavit. The respondent in an affidavit in opposition affirmed on 14th June 1972 denied these allegations and asserted that it was incorrect to say that the learned Subordinate Judge was wrong in recording such a concession. This point was reiterated by the appellant's son in another affidavit affirmed on July 26, 1972 (vide para. 6)wherein he prayed for calling certain documents which were filed in the Trial court on 29. 4. 1972. The objection was however, taken in a half-hearted manner in the memorandum of appeal (vide ground No. 12) and the affidavits came to be affirmed at a later stage. A concession recorded in a judgment cannot ordinarily be permitted to be challenged by a party in an appeal. The supreme Court in the case of (1) Bank of Bihar v. Mahanilal reported in A. I. R. 1964 S. C. 377 at page 380 held that a statement appearing in a judgment could not be challenged by a party in an appeal except with the consent of the other party that it was erroneous or the court recording it admits it to be wrong. The proper remedy it was pointed out, was by way of review. In the case reported in (2) Madhu Sudan chowdhri v. Musammat Chandrabati chowdhrian 21 C. W. N. 899 their Lordships of the Judicial Committee held that a statement in a judgment as to the conduct of a pleader, could not ordinarily be entertained in appeal in the absence of anything showing that the pleader called the attention of the court that the statement in the judgment regarding his conduct was wrong. In another case reported in (3) Mahadeo v. Hanumanmal A. I. R. 1969 Rajasthan 304, rajasthan High Court held that a statement in a judgment that no other point except that of jurisdiction was urged before the court, must be taken to be true, in the absence of any affidavit affirmed either by the Counsel or the party in the trial court. In view of these authorities, we conclude that a statement in a judgment that a certain point had been conceded, cannot be challenged in appeal unless the aggrieved party drew the attention of the court delivering the judgment at about that time it was delivered. Mr. Dutta however, contends that even assuming that there was such an admission before the Trial Court, it at best amounted to the giving up of the case on a point of law and he was entitled to reagitate the same in this appeal. Proceeding on that footing Mr. Dutta attacked the order under appeal on four main grounds. It was contended in the first place that the exparte decree not having provided for possession, restoration of possession cannot be given; secondly, the deed of conveyance not having been set aside or cancelled, it stands as a bar to respondents asking for possession in this proceeding; thirdly, possession if restored, must be conditional on reimbursement of the payments incurred by the appellant in connection with the property or the running of the Cinema business and fourthly, the court should restore the parties to the position in which they were at the date of decree. 3. THE first objection of Mr. Dutta is clearly untenable. The suit was for specific performance of contract as embodied in the agreement dated 1. 8. 1947 and for possession of the property after execution of the appropriate deed of transfer. The suit was decreed in its entirely and the decree primarily directed the defendant to execute and register the document in favour of the plaintiff within a certain date and when the defendant failed to do so, plaintiff applied for execution of the same and for possession of the property in Title execution case No. 3 of 1971. It was in execution of this very decree that the plaintiff obtained delivery of possession on 12. 4. 1971. It was in execution of this very decree that the plaintiff obtained delivery of possession on 12. 4. 1971. So when the exparte decree is vacated, plaintiff appellant cannot be heard to say that he can retain part of the benefit received by him in execution of the said decree. It is settled law that in a decree for specific performance of a contract for sale, the court can as well grant possession of the properties, even though no possession is prayed for. Reference in this connection may be made to the case reported in (4) Atalbehari v. Barada a. I. R. 1931 Patna 179, where it was held that a contract for sale not only includes the execution of the necessary document but also putting the vendee in possession of the property. In this case, it was further held that even if there was an omission in the plaint or in the decree about the prayer or order for possession, the executing court was not debarred from granting the relief. This contention of Mr. Dutta must therefore fail; in any event the suit, we find, upon reading the plaint the decree was one for possession also and the suit was also decreed in its entirety. 4. AS for the second contention raised by Mr. Dutta, we do not think that the cancellation of the instrument that came into existence as a result of a decree, now varied or reversed, is a condition precedent to the making of an order for restitution Section 31 of the Specific Relief Act provides for protective relief to the party and where a document is founded on a decree that is set aside or vacated, the document becomes not merely voidable but is altogether void. Such a document is not required to be set aside. As was observed by the Madras High Court in a case (5) Muppudathi v. Krishnaswami reported in A. I. R. 1960 Madras 1, such a document though not necessary to be set aside may, if left outstanding, be a source of potential mischief and the jurisdiction under Section 39 of the special Relief Act was for protective or preventive relief. This was a case under the old section 39 which now corresponds to section 31 of the New act. This was a case under the old section 39 which now corresponds to section 31 of the New act. The form of relief provided in section 39 is founded upon the administration of protective justice and it is for the petitioner to ask for its cancellation if he requires protection. Person in whose favour such an instrument stands cannot in our view, be permitted to set it up, as a bar against the person, who is entitled to restoration of possession of the property on the reversal of the decree, which provides for the foundation of the instrument. We are therefore, unable to accept the second contention of Mr. Dutta. Mr. Dutta contends in the next place that if the possession is to be restored to the respondent it must be conditional upon payment of the prior liabilities incurred by the respondent but satisfied by the appellant, after obtaining possession. No such ground, it appears was specifically taken in the petition of objection filed in the restitution proceeding. The appellant in his objection filed on 19. 2. 1971 asserted in para. 3 that the liabilities of the Cinema house prior to March 1971, were about rs. 1,99,023/- out of which he was compelled to pay a sum of Rs. 40,000/- and odd to meet outstanding expenses for running the Cinema house and instead of making any profit from cinema business, he was actually out of pocket for considerable amount. The amount was not however, specified in the petition of objection nor was the break up of this amount clearly disclosed. 5. IN paragraph 3 (g) of the petition of objection to the application for restitution before the trial court, the appellant merely asserted that he was entitled to be reimbursed to the extent of a considerable sum of money for running the cinema business. But this was not followed up by any details as to payments nor was any evidence adduced before the trial court on this point. In the memorandum of appeal also no such specific ground was taken, it being merely stated in ground No. 11 that the Subordinate Judge failed to consider that the appellant was compelled to pay Rs. 31,695. 15 in respect of prior liabilities after taking possession and the order for restitution without providing for the reimbursement of the amount was incorrect. In the memorandum of appeal also no such specific ground was taken, it being merely stated in ground No. 11 that the Subordinate Judge failed to consider that the appellant was compelled to pay Rs. 31,695. 15 in respect of prior liabilities after taking possession and the order for restitution without providing for the reimbursement of the amount was incorrect. It is worthy of note that this amount differs considerably from the amount mentioned in paragraph No. 3 (g) of the objection petition. Apart from the fact that this objection was not specific, damage or compensation claimed in a proceeding under section 144 must be consequential on the variation or reversal of the decree. As has been observed by the judicial Committee of the privy Council in the case (6) Kedar v. Kedar reported in A. I. R. 1922 P. C. 269, that one of the first and highest duties of all courts is to take care that the act of the court does not cause injury to the suitors and to place the parties in the position which they would have occupied but for such decree as has been varied or reversed. Equities to be settled must however relate to the decree and an optional payment made without any order of the court could not be made a condition of restoration. This point canvassed by Mr. Dutta cannot therefore be accepted. 6. LASTLY, Mr. Dutta contends that as the respondents were never in the possession of the properties and as these were not taken out of their possession or made over to the appellant under the decree or order of the court, section 144 had no application in this case, Mr. Dutta relied upon a decision of the madras High Court (7) Sundaram v. Raghava reported in A. I. R. 1922 Madras 96, where it was held that the prejudice to be removed by way of restitution must be result of erroneous terms of the original decree but where the prejudice suffered was not due to the variation in the decree, but to the terms of the sale order, to which no objection was taken section 144 had no application. In the instant case, it was sought to be contended that the decree did not provide for delivery of possession and the document on the basis of which the appellant obtained possession through court in execution, not having been challenged, the court was not competent to order restitution. In the above cited case, such prejudice as the respondents have suffered was due not to the variation in the decree, but to the terms of the sale order regulating the order in which the items were to be sold, to which no objection was taken at any stage. Section 144 in such circumstances was held inapplicable. Mr. Dutta further referred to a decision of this court in (8) Dayal v. Tari deshi reported in A. I. R. 1932 Calcutta 303 where it was held that the judgment debtor cannot obtain relief by way of restitution unless he is able to show that the prejudice sought to be removed was the result of the terms of the original decree. The prejudice in the instant case must be held to be consequential to the terms of the decree, since reversed and this objection of mr. Dutta cannot therefore be accepted. We now proceed to examine, if the respondents are entitled to have restitution in the facts of the instant case. Doctrine of restitution came to be examined by the Supreme Court in a case (9) Lal Bhagawanta v. Sri krishna reported in A. I. R. 1953 S. C. 136 where it was held that on the reversal of a judgment, the law raises an obligation on the party to the record, who receives 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 it was shown that the restitution would be clearly contrary to the interest of justice. Section 144. Supreme Court further pointed, out, cannot be invoked where the judgment debtor failed to establish that the sale of the properties was in substance and truth a consequence of the error in the decree that was reversed. The doctrine of restitution in relation to an exparte decree was further examined by the Supreme court in a later case (10) Binayak v. Ramesh reported in a. I. R. 1966 S. C. 948. The doctrine of restitution in relation to an exparte decree was further examined by the Supreme court in a later case (10) Binayak v. Ramesh reported in a. I. R. 1966 S. C. 948. The obligation referred to above arose automatically on the reversal or modification of a decree and necessarily carried with it the right to restitution of all that had been done under the erroneous decree and the court in making restitution was bound to restore the parties so far as they can be, to the same position in which they were at the time when the decree was passed. In that case, the decree holder in execution of the ex parte decree obtained by him, auction purchased the property of the judgment debtor; the decree was subsequently set aside by the High Court and the suit was ordered to be reheard. 7. THE Supreme Court was of the view that the judgment debtor was entitled to restitution of his properties purchased by the decree holder subject to equities to be adjusted in favour of the decree holder, notwithstanding anything that may have happened subsequently. Events taking place subsequent to the delivery of possession was taken into consideration in a case of the Assam High Court, (11) Hurmatali v. Matlib reported in A. I. R. 1952 Assam 111, where the court directed restitution under section 144, notwithstanding the transfer of the properties to third parties by the decree holder, after delivery of possession was effected. Apart from the concession made before the trial court, the decree, on the basis of which appellant obtained the deed of conveyance and delivery of possession, having been set aside, the respondent's claim for restitution cannot be resisted. 8. THE question which now arises is whether the appellant is entitled to be restored to the position that he formerly used to occupy prior to the decree. Admittedly, the appellant was a manager of the Cinema House and police licence and the corporation licence relating to it also stood in his name. The appellant was to get besides his monthly remuneration, a certain amount by way of commission on the basis of the agreement, dated 1st august, 1949, which was the foundation of his claim in the suit. It was to enforce his claim under that agreement that the appellant instituted the suit and obtained the exparte decree. That decree no longer subsists. It was to enforce his claim under that agreement that the appellant instituted the suit and obtained the exparte decree. That decree no longer subsists. The appellant now wants to be restored to that position which he used to occupy prior to his taking possession in execution of the decree. Would the court be justified in directing the appellant to be restored to that position this case In our opinion, the appellant cannot be restored to the position he used to occupy at the date of the decree or prior to his taking possession in execution thereof. Mr. Chaudhuri the learned counsel for the respondent, contended that the appellant was never in possession of the Cinema, except as a Manager. In para. 16 of his plaint, the plaintiff appellant applied for appointment of a receiver in respect of the Cinema business with immediate effect and in the prayer portion also there was a prayer for appointment of a receiver Receipt granted by the appellant's son Dipak Dutta on 12. 4. 1971 in the writ for delivery of possession would also show that the plaintiff obtained possession of this Cinema House. The respondent in para. 2 of his application under order 9 rule 13 of the code asserted that on 12th April 1971 their Durwans reported that the opposite party turned them out of the cinema House, alleging that he had become the owner of the Cinema House on the strength of the Court's order. This statement was not controverted in the petition of objection filed by the appellant (vide para. 5. It would thus appear that the possession of the appellant prior to the decree, was on behalf of the respondent company, of which he was an employee and that possession cannot be referable to the terms of the decree, since reversed. In his capacity as a manager, the appellant was responsible for running the Cinema and the fact that the municipal or police licence stood in his name did not in any way alter the position. Running of this cinema Business therefore, had, nothing to do with the reversal of the decree or that terms thereof. Relief under section 144 is only available to the person, who applied for restitution and not to the person against whom it is sought, subject only to settlement of equities, in favour of decree holder, which again must relate to the decree. Relief under section 144 is only available to the person, who applied for restitution and not to the person against whom it is sought, subject only to settlement of equities, in favour of decree holder, which again must relate to the decree. The equities set up by the appellant in our view do not relate to the decree nor can the injury apprehended by him be said to be attributable to the act of the court or properly consequential to the terms of the decree. 9. THAT being the position, we hold that the appellant is not entitled to any relief in this appeal. The appeal is accordingly dismissed with costs. The application filed on 26th July, 1972 stands rejected. Let the records go down as early as possible.