JUDGMENT : K.P. Mohapatra, J. - This is an appeal against the order passed by the learned Subordinate Judge, First Court, Cuttack, partially allowing the respondent's petition for restitution u/s 144 of the CPC (referred to as 'the Code'). 2. The relevant facts in short are stated below :- The appellants instituted Title Suit 215 of 1981 in the Court of the learned Subordinate Judge, Cuttack, against the respondent for specific performance of contract in respect of a pucca house consisting of five rooms and appurtenances standing on plot No. 326 with an area of Ac. 0.041 decimals in khata No. 13 of Mauza Patpur within Lalbag Police Station of Cuttack town (referred to as suit property). On 6.1.1983, the suit was decreed ex parts by the learned Additional Subordinate Judge. Cuttack, against the respondent. On 23.3.1983, the appellants in Execution Case No. 5 of 1983 put the ex parte decree in to execution and in due course obtained delivery of possession of the suit property on 8.12.1584. On 10.12.1984, the respondent made a petition under Order 9, Rule 13 of the Code in Misc. Case No. 66 of 1984 for setting aside the ex parte decree. On 6.4.1985 the ex parte decree was set aside by the learned Additional Subordinate Judge, Cuttack. On 10.4.1985, a petition u/s 144 of the Code registered as Misc. Case No. 24 of 1985 was filed by the respondent in the Court of the learned Subordinate Judge, First Court, Cuttack, claiming restitution of the suit property. 3. The appellants in their counter pleaded that the respondent was not entitled to restitution in respect of the entire suit property because, after entering into a contract for sale, the respondent, in part performance thereof, had delivered possession of a room in favour of the appellants. 4. On hearing both parties, the learned Subordinate Judge, First Court, Cuttack, allowed restitution in part and directed that the respondent was entitled to redelivery of the suit property except the room which was in possession of the appellants. The appellants have challenged the order mainly on the ground that the learned Subordinate Judge, First Court, Cuttack, had no jurisdiction to entertain the respondent's petition u/s 144 of the Code. The respondent has assailed the same by filing a cross-objection on the ground that the learned Court below erred in not redelivering the entire suit property in his favour. 5. Mr. The respondent has assailed the same by filing a cross-objection on the ground that the learned Court below erred in not redelivering the entire suit property in his favour. 5. Mr. R. C. Mohanty, appearing for the appellants, urged that the ex Parte decree was passed by the learned Additional Subordinate judge, Cuttack, and so this Court being the Court of first instance had jurisdiction to entertain a petition for restitution u/s 144 of the Code and dispose of the same. The learned Subordinate Judge, First Court, Cuttack, was not the Court of first instance and so he had neither jurisdiction to enertain the petition u/s 144 of the Code nor allow restitution. Therefore, the impugned order being without jurisdiction is liable to be set aside. Mr. M. Patra learned counsel for the respondent on the other hand, contended that although the Court of first instance was the learned Additional Subordinate Judge, Cuttack. yet by two administrative orders contained in letter Nos. 1589 / HC(S), dated 1.4.1985 and 1699/HC (S), dated 24.4.1985, the District Judge, Cuttack, directed transfer or all execution cases and final decree proceedings from the Court of the learned Additional Subordinate Judge, Cuttack, to the Court of the learned Subordinate judge. First Court, Cuttack, for disposal. That is how Execution Case No. 5 of 1983 filed' in the Court of the learned Additional Subordinate judge, Cuttack, came on transfer to the Court of the learned Subordinate Judge, First Court, Cuttack, on 1.5.1985. Thereafter Misc. Case No. 24 of 1985 u/s 144 of the Code was disposed of by him in such circumstances, the transferee Court had jurisdiction to entertain and dispose of the petition u/s 144 of the Code. 6. Before embarking upon a discussion on the principal issue, it would be useful to specifically remember a few indisputed facts. The ex parte decree was passed fey the learned Additional Subordinate Judge on 6.1.1983 who set aside the same on 6.4.1985. The execution case was filed before him on 24.3.1983, and delivery of possession was effected on 8.12.1984 when the execution case was still pending on his file. The petition for restitution u/s 144 of the Code was also filed before him. The execution case was filed before him on 24.3.1983, and delivery of possession was effected on 8.12.1984 when the execution case was still pending on his file. The petition for restitution u/s 144 of the Code was also filed before him. But on account of transfer of the execution case to the Court of the learned Subordinate Judge, First Court, Cuttack, on 1.5.1985, the impugred order u/s 144 of the Code was passed by the latter Court. Therefore, if the record of ''the execution case would not have been transferred to the Court of the learned Subordinate Judge, First Court, from the Court of the learned Additional Subordinate Judge, Cuttack, the latter Court would in usual course have disposed of the respondent's petition u/s 144 of the Code. 7. According to the scheme of Section 144 of the Code, which was last amended by the CPC (Amendment) Act, 1976, where a decree or an order is varied or, reversed in any 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 as well, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part there of as has been varied, reversed, set aside or modified, and, for this purpose, the Court may make any other order specified in the section. The explanation below the section specifies the meaning of the expression 'Court which passed the decree or order' which shall be deemed to include (a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance; (b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order; and (c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit. The instant case is not covered by the explanation. The instant case is not covered by the explanation. But as it is inclusive, the Court of first instance in this case is the Court which passed the ex parte decree, namely, the Court of the learned Additional Subordinate Judge, Cuttack. Therefore, according to the provisions of Section 144 of the Code, the learned Additional Subordinate Judge, Cuttack, being the Court of first instance had jurisdiction to entertain and disrose of the respondent's petition for restitution. The Court of Subordinate Judge, First Court, Cuttack, would have derived jurisdiction to entertain and dispose : of the respondent's petition for restitution if only according to Clause (c), of the explanation, the Court of the learned Additional-Subordinate Judge, Cuttack, had ceased to exist or had ceased to have jurisdiction to execute the ex parte decree, in which case, the Court of the learned Subordinate Judge, First Court, being a Court of co-ordinate jurisdiction would have acquired jurisdiction to entertain and dispose of the respondent's petition for restitution. But it is indisputed that both the Courts, though of co-ordinate jurisdiction, still exist and function. This being the position, it is impossible to resist the conclusion that the Court of the first instance was the Court of the Additional Subordinate Judge, and not the Court of the learned Subordinate Judge, First Court, Cuttack, to whom Execution Case No. 5 of 1983 along with Misc. Case No. 24 of 1985 was transferred by administrative orders of the District Judge, Cuttack. The above view finds full support from the following decisions. In Gauri Shanker Pandey and Another Vs. Chandari Girja Prasad Singh a Division Bench held thus : "Thus the right to make an application for restitution has been vested in the party to make such application before the Court of first instance whose order has been varied or reversed. What has to be seen in each case, therefore, is which order has been reversed and which Court passed that order. It is the Court, which passes the first wrong order on account of the reversal of which the right of restitution arises is the proper Court to entertain the application u/s 144, C. P. C." In Satyanarayan Jhunjhunwala Vs. What has to be seen in each case, therefore, is which order has been reversed and which Court passed that order. It is the Court, which passes the first wrong order on account of the reversal of which the right of restitution arises is the proper Court to entertain the application u/s 144, C. P. C." In Satyanarayan Jhunjhunwala Vs. Punjab National Bank Ltd. a Division Bench held as follows : "The Court of first instance referred to in Section 144 means the initial Court where the suit was originally started, that is to say the trial Court. It should be remembered that the trial Court can set aside a decree passed by it under Order 9, Rule 13 of the C. P. C. and there may be occasions for the trial Court to reverse or recall an order or decree passed by it for proper decision and for ends of justice. An order or a decree again may be set aside in an appeal or a revision. There are thus cases of reversal of a decree or an order by trial Court or by the Court of higher forum and as such the legislature thought it fit to avoid doubt to say specifically in Section 144 of the C. P. C. that in cases of reversal of a decree or an order, the party concerned may file an application for restitution, if occasion arises, in the Court of first instance, namely, the Court where the proceeding originated." In another decision reported in 1977 K. L. T. 570 Atta Koya v. Kunchl Seethi Koya & others, Balakrishna Eradi, J. (as his Lordship then was) spoke for the Division Bench thus : "Finally, the Subordinate judge is not correct in his view that an application for restitution u/s 144, C. P. C, can be filed before the transferee Court by which the decree had been actually executed. The jurisdiction to entertain an application for restitution has been conferred by Section 144, C.P.C., only on the Court of first instance. The application seeking relief under the section has, therefore, to be made before the Court which decided the case in the first instance and it cannot be made before a Court to which the execution of the decree had been transferred." In State Bank of Saurashtra Vs. The application seeking relief under the section has, therefore, to be made before the Court which decided the case in the first instance and it cannot be made before a Court to which the execution of the decree had been transferred." In State Bank of Saurashtra Vs. Chitranjan Rangnath Raja and Another Section 144 of the Code came to be interpreted as it stood before and after the CPC (Amendment) Act, 1976 and it was held as follows : "......Prior to Amendment Act, 79/6, an application for restitution u/s 144 in all cases had to be made to the Court of first instance. Even since the amendment, the substituted expression 'the Court which passed the decree or order' would, as per Clause (a) of the Explanation mean the Court of first instance because the expression 'the Court which passed the decree or order' has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance." 8. On the' facts of this case and the interpretation of the expression 'Court of first instance' occurring in Section 144 of the Code, the impugned order of partial restitution passed by the learned Subordinate Judge, First Court, Cuttack is liable to be set aside as being without jurisdiction. 9. Mr. R.C. Mohanty, learned counsel for the appellants referred to certain petition filed by the respondent in course of the execution proceeding in which the latter had taken the plea that despite execution of the writ of delivery of possession in respect of the suit property in favour of the appellants, the respondent continued to remain in possession thereof and was subsequently forcibly dispossessed by the appellants otherwise than in accordance with law Since according to the plea raised by the respondent himself that he was not dispossessed of the suit property in due process of law, the petition for restitution u/s 144 was not maintainable. The reply of Mr. M. Patra, learned counsel for the respondent was that whatever plea the respondent might have taken, the writ of delivery of possession in the record of Execution Case No. 5 of 1983 shows that he was dispossessed in due process of law Therefore, the petition for restitution u/s 144 of the Code was maintainable in accordance with law. 10. M. Patra, learned counsel for the respondent was that whatever plea the respondent might have taken, the writ of delivery of possession in the record of Execution Case No. 5 of 1983 shows that he was dispossessed in due process of law Therefore, the petition for restitution u/s 144 of the Code was maintainable in accordance with law. 10. The writ of delivery of possession executed on 8.12.1984 shows that the appellants took possession of the entire suit property. There was no mention that out of five rooms they took possession of four rooms, because, they were already in possession of one room since the date of the contract for sale as part performance of the contract. The impugned order shows that there was no discussion on this point with reference to the terms of the agreement regarding delivery of possession of one room by the respondent in favour of the appellants in part performance of the contract or the recitals made in the plaint in relation thereto. The learned Subordinate judge. First Court, Cuttack, jumped to the conclusion that the appellants were in possession of a room, because, the respondent did not counter the averment of the appellants to the aforesaid effect. He did not elucidate as to how and in what manner the respondent did not counter such averment of the appellants in the face of clear recitals in the petition u/s 144 of the Code that the respondent was dispossessed from the entire suit property, including the room alleged to have been in possession of the appellants. So, this point is necessary to be determined afresh after reference to the material documents with regard thereto. 11. The respondent filed a petition under Order 39, Rule 1, read with Section 151 of the Code registered as Misc. Case No. 72 of 1984 on 20.12 84. He alleged in the petition that actually there was no delivery of possession of the suit property in favour of the appellants and he was still in possession thereof. Therefore, he prayed for temporary in junction against the appellants not to interfere with his peaceful possession of the suit property. On 16.1.1985 he filed another petition under Order 39, Rule 2-A of the Code registered as Misc. Therefore, he prayed for temporary in junction against the appellants not to interfere with his peaceful possession of the suit property. On 16.1.1985 he filed another petition under Order 39, Rule 2-A of the Code registered as Misc. Case No. 3 of 1985 stating therein that while he was in peaceful possession of the suit property, he was forcibly dispossessed by the appellants on 12. 1. 1985. In the petition u/s 144 of the Code it was stated that the report of the Process Server to the effect that he gave delivery of possession of the suit property in favour of the appellants on 8.12.1984 was false. As a matter of fact, on that day the respondent was not dispossessed in due process of law and he continued to remain in possession of the suit property until he was forcibly dispossessed by the appellants subsequently. While disposing of the petition for restitution, the learned Subordinate Judge, First Court, Cuttack, did not at all consider the above material facts which have got a direct bearing on the question of restitution. Basing on these facts Mr. R.C. Mohanty, learned counsel appearing for the appellants contended that the doctrine of restitution envisaged in Section 144 of the Code will be applicable only if the person claiming restitution is dispossessed in due process of law and not otherwise. Therefore, the respondent was not entitled to restitution in terms of Section 144 of the Code. 12. In A. I. R. 1974 SC 48 Banchhanidhi Das v. Bhanu Sahuani and others, refence was made to A. I. R 1922 P. C. 269 AIR 1943 189 (Privy Council), and (1871) 71 ER 120 Rodger v. Comption Escompte De Paris and it was held thus : "It is clear that this principle apart from Section, 144, Civil P. C. can be invoked only when a party has suffered injury by act of the Court. In the present case, plaintiff No. 2 did not suffer any injury by reason of any act of Court and so this principle also cannot be called in aid," In Ganesh Parshad Vs. Adi Hindu Social Service League a Division Bench held : "The doctrine of restitution is based upon the cardinal principle of law that the acts of Courts should not be allowed to work injury on the suitors. Adi Hindu Social Service League a Division Bench held : "The doctrine of restitution is based upon the cardinal principle of law that the acts of Courts should not be allowed to work injury on the suitors. Section 144, C. P. C, contemplates restitution in a case where the property has been received by the decree-holder under his decree and that decree is subsequently, wholly or partially, reversed or Varied in other proceedings. In such a case, the law raises an obligation on the party, who receives the benefit of such erroneous judgment, to deliver back the property to the person who had lost it." In S.M. Deshmukh Vs. Ganesh Krishnaji Khare a Division Bench held that the doctrine or restitution is based on the principles that the first and highest of the duties of all the Courts is to take care that the Act of the Court does no injury or wrong to the suitors. It is, therefore, c/ear that the doctrine of restitution is applicable and Section 144 of the Code can be invoked only when a person has suffered injury by an act of the Court and not otherwise. 13. The impugned order shows that there was neither any discussion nor a clear-cut decision as to whether the respondent was dispossessed from the suit property in due process of law, in other words by an act of the Court, or he was dispossessed forcibly by the appellants on 12.1.1985. For applicability of Section 144 of the Code, a decision on this point is very material. The attention of the parties to this aspect of the case does not seem to have been reverted when the petition u/s 144 of the Code came for disposal. Therefore, in the facts and circumstances of this case, I consider it expedient in the interest of justice to remand Misc. Case No. 24 of 1985 u/s 144 of the Code for fresh disposal according to. law after giving the parties further opportunity to produce evidence, both oral and documentary. The case should be disposed of by the learned Additional Subordinate Judge, Cuttack, who passed the ex parte decree to whom it stands transferred by the end of this year under intimation to the Court. 14. For the reasons stated above, the appeal Is allowed and the impugned order is set aside. Misc. The case should be disposed of by the learned Additional Subordinate Judge, Cuttack, who passed the ex parte decree to whom it stands transferred by the end of this year under intimation to the Court. 14. For the reasons stated above, the appeal Is allowed and the impugned order is set aside. Misc. Case No. 24 of 1985 is remanded to the Court of the learned Additional Subordinate Judge, Cuttack, for fresh disposal according to law in the light of the observations made above. The cross-objection is accordingly disposed of. Parties to bear their own costs. Final Result : Allowed