HIREMATH, J. ( 1 ) THE only material point that clinches the whole appeal is, whether the application for restitution could have been filed by the respondent on the facts admitted to be true. Briefly stated the present respondent had filed Original Suit No. 264 of 1953 for permanent injunction against the appellants restraining them from interfering with his possession of the suit land on the ground that he was a sub tenant under the appellants. There was an application for interim injunction marked as Ex. 4 which came to be disposed of on 13-10-1953 directing the defendants-appellants to furnish security to on extent of Rs. 1,000/- within two weeks from the date of the order. In the course of the order, the Court which passed it, observed at paragraph 8 as follows:"the applicant's case is that the opponents took the suit land on lease from one Dattatraya Vasude v Nadgauda in the year 1944 and subsequently the opponents sub-Jet a portion of the land to him. But he has not produced any kaulayat nor any receipt for having paid the rent to the opponents for any of these years. In the circumstances it is difficult to believe the evidence produced by the applicant and to come to any definite conclusion at this stage. Now for entitling the applicant for an injunction he must first prove that he has right; that his right is threatened and that there is a likelihood of the irreparable loss unless the Court interfers. The applicant has not made out any prima-facie case and on the other hand we would find that the opponents' case is more consistant and the loss to the applicant (plaintiff) if any could be adequately compensated and the opponents are willing to furnish sufficient security. "thus, in sum, the trial Court held that the respondent-plaintiff therein was not in actual possession of the Land as on 13-10-1953 but, only to safeguard his interest if any, the opponents-appellants were called upon to furnish security. Ultimately, the respondent approached the Land Tribunal, got an order in his favour that he was a tenant on the suit land and this order was obtained when the respondent found it necessary that he should establish his possession as a tenant on the date of suit. Ultimately, the respondent approached the Land Tribunal, got an order in his favour that he was a tenant on the suit land and this order was obtained when the respondent found it necessary that he should establish his possession as a tenant on the date of suit. After an order was obtained in his favour from the Land tribunal, the trial Court gave a decree in his favour for permanent injunction and the same was confirmed in appeal also. ( 2 ) IT is the case of the appellants that the respondent was not a tenant or sub-tenant and in fact they themselves have approached the Tribunal and later they have also filed an application for grant of occupancy rights before the Land tribunal. That however, is not a very material point at this stage in this appeal. ( 3 ) SECTION 144 C P C. reads as follows :"application for restitution - (1) where and in so far as 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 ae will 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 thereof as has been varied, reversed, set aside or modified); and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly (consequential on such variation, reversal, setting aside or modification of the decrees or order ). xxx xxx xxx xxx (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1 ). "it is therefore necessary to see if there was a Decree or order of any Court bv which he (the respondent) lost possession or was dispossessed. Intention of section 144 C P. C. is to p|aqe the parties in the original position which they would have occupied, but for such decree, or order. "it is therefore necessary to see if there was a Decree or order of any Court bv which he (the respondent) lost possession or was dispossessed. Intention of section 144 C P. C. is to p|aqe the parties in the original position which they would have occupied, but for such decree, or order. Therefore, in order to succeed in an application of this nature, it is absolutely necessary that an applicant should allege and prove what was the decree/or order under which he was dispossessed or lost possession. Whether a foundation is laid for such a relief could be made out on the aljegation that is made in the miscellaneous Application No. 78 of 1958, from which this appeal has arisen. In paragraph 3 of the application the respondent has made an allegation that the Court ordergd security in a sum of Rs. 1,000/- from the appellants and then gave actual possession to them. The causa of action arose in September 1953 on a certain day. Thus for all purposes, the applicant made out a case in his application that it was the Court that handed over possession to the appellants by taking security of Rs. 1,000/ -. It would be apt to restate in his own words what exactly the respondent placed in paragraph-3. The order as already stated below ex 4 was passed on 13-10-1953. Therefore, it is wholly wrong to say that it was in September 1953 that this possession was delivered as this particular date or month has been pleaded as the time giving rise to the cause of action. The respondent's counsel has urged strongly during arguments that this itself should be construed as an order by which he was dispossessed and therefore is entitled to a claim under Section 144 C. P. C. The appellants' counsel invited my attention to a decision of this Court in the case of sakamma v. Era Gowda (1974 (2) K. L J. 357), in which his Lordship Justice malimath (as his Lordship then was) observed that the fact that the suit for permanent injunction has been dismissed resulting in the vacation of the interim order of injunction granted during the pendency of the suit, does not entitle the defendant to seek restitution under Section 144 C. P. C. The only remedy, in the circumstances, is to file an appropriate suit for necessary reliefs. The dismissal of the plaintiff's suit for permanent injunction on the ground that he was not in possession on the date of suit, does not amount to conclusively holding that the defendant was in possession on the date of suit. S. 144 or S. 151 cannot be invoked to give positive relief to the defendant, which relief he can secure in a suit. The facts, according to the appellants' Counsel are attracted in the instant case inasmuch as the appellants herein were the defendants in the original suit and that fact however does not make any difference. The respondents' counsel has invited my attention to the decision in the case of Jagendra Nath Singh v. Hira Sahu and others (A. I. R 1948 Ailahabad 253), and Jai Berham and others v. Kedar nath Marwan and others (A. I. R. 1922 P. C. 269 ). In these cases, it maybe slated the fact is that the party in Question was dispossessed by virtue of the order of the court either due to an auction sale or in execution proceedings. The situation that now obtains in the instant case was no" in either of these cases. The ratio decidendi of the decisions in these cases is that when dispossession has occurred by virtue of the order of the Court in execution proceedings or otherwise, it is the duty of the Court to restore the parties to the original position which they held. Therefore, ultimately, the only point would be whether this order refusing temporary injunction to the respondent could be construed as an order putting the appellants in possession by the Court itself. In my view to draw such an inference would be too far fetched. That is against the very Wording and spirit of Section 144 c. P. C. ( 4 ) THE main plank of the argument on behalf of respondent is, that because the defendants-appellants were asked to furnish security in a sum of Rs. 1,000/-, it must be held that they were balled upon to compensate the respondent in case he was found to be in possession. I do not think there should be any quarrel over this interpretation, but the order cannot be stretched to the extend that it was the court which put the appellants in possession by virtue of this order. 1,000/-, it must be held that they were balled upon to compensate the respondent in case he was found to be in possession. I do not think there should be any quarrel over this interpretation, but the order cannot be stretched to the extend that it was the court which put the appellants in possession by virtue of this order. The effective answer could be found in the case of sakamma (supra) It may be that, ultimately, the plaintiff-respondent will succeed as regards a declaration from the tribunal that he was a tenant of the suit land. When exactly he lost possession cannot be made out for the simple reason that the Court itself did not put the appellants in possession. It was quite possible that he was in possession or he was never in possession. After the decree was passed, it was his right to protect his possession by preventing the appellants from interfering with his possession, as the decree of the Court was against the appellants. If at all he had lost possession at any point of time he was at liberty to amend the pleading so as to make a prayer for delivery of possession. If he had lost possession at some point of time, it cannot be made out when exactly it was. That was during the pendency of the suit or otherwise. At any rate, it cannot be said that he had lost possession on account of the order or decree of the Court. To stretch this order to the length that the respondents' Counsel has urged would be rather putting a strain on wordings of Sec. 144 C. P C. ( 5 ) THE point however that whether a tenant can sue for actual possession before a Civil Court recedes to the background and the decision relied upon by the respondents' Counsel in the case of chennegowda v. M. N. Thimmiah and others (1979 (1) K. L. J. 305 and in the case of Kasturiranga lyengar v. Town municipal (1975 (2) K. LJ. 333 are very much material for the reason that this is not a suit for possession and therefore, this Court did not into that aspect of the matter. As I have found, the respondent was not dispossessed by any decree or order of the Court. 333 are very much material for the reason that this is not a suit for possession and therefore, this Court did not into that aspect of the matter. As I have found, the respondent was not dispossessed by any decree or order of the Court. It is not possible to invoke the clauses of Section 144 C. P. C. and the Courts below were in error in awarding restitution. ( 6 ) THE appeal has therefore to be allowed and accordingly it is allowed and the petition for restitution is dismissed. Parties to bear their respective costs in this appeal. Appeal is allowed. --- *** --- .