JUDGMENT : P.C. Misra, J. - The petitioner in this writ application has prayed for quashing the proceeding u/s 68 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act') started against him and also the revisions! order of the Commissioner of Endowments confirming the order of the Assistant Commissioner of Endowments in the matter of restitution of the properties of which the petitioner was dispossessed in the aforesaid proceeding. 2. The present opp. party No. 3 as trustee and Executive Officer of the deity Sri Laxmibarahnath Jew at Demal within the jurisdiction of Munsif, Kendrapara- in the district of Cuttack filed' an application u/s 68 of the Act, registered as O. A. No. 11 of 1%8. In the said proceeding the present petitioner was set ex parte and on the basis of the ex parte evidence, an ex parte order putting the opp. party No. 3 in charge was passed by the Assistant Commissioner of Endowments. Pursuant to the said order, a writ was issued to the Inspector of Endowments which contained, the' direction to obtain possession from the present petitioner and deliver the same to the trustee-cum Executive Officer of the Institution. The present petitioner thereafter filed an application for setting aside the ex parte order along with a petition-to stay execution of the writ. But as it appears the writ of delivery of possession issued in the said proceeding got executed before an order of stay was passed. The said application of the petitioner for setting aside the ex parte dscree in the proceeding Under Section" 68 of the Act was ultimately allowed by order dated 8-6-1989 on payment of certain amount of cost which was paid within the time granted for the purpose. Consequently, the proceeding u/s 68 of the Act become alive and open for fresh disposal in accordance with law. The petitioner thereafter filed an application for restitution of the properties of which he was dispossessed pursuant to the ex parte order, but contended therein that the alleged delivery of possession was collusive and fraudulent and Inspite of the writ of delivery of possession reported to have been executed, the uetitioner is still continuing in possession and is being threatened, by this- present opp. pirty No. 3 to be dispossessed at any time. pirty No. 3 to be dispossessed at any time. The Assistant Commissioner of Endowments dismissed the said application by his order 'dated 1-9-1989 (Annexure-13) holding that Section 144 of the CPC under which the prayer for restitution has has made is inapplicable in view of the decision of this Court reported in AIR 1389 Ori. 103 (Garuda Singh Majhi v Dhana Bai and others) and also for the reason that restitution u/s 151, CPC is inappropriate in the facts and circumstances' of the case. The petitioner challenged the aforesaid order in Annexure-13, in a revision before the Commissioner of Endowments (R. C. No. 36/89) u/s 9 of the Act. The Commissioner of Endowments after, hearing both parties by his order dated 22-8-1990, copy of which is Annexure-17, dismissed the revision holding that the decision reported in AIR 1989 Cri. 103 (supra) relying on which the Assistant Commissioner of Endowments rejected the prayer for restitution, fully applies to.tha present case and the decision of the Supreme Court reported in Busching Schmitz Private Limited Vs. P.T. Menghani and Another, which was cited or: behalf of the present petitioner is clearly distinguishable on facts. Having held that the said decision of the Supreme Court is not applicable, the Commissioner of Endowments dismissed the revision further observing that the petitioner having himself stated in his application that he has not been physically dispossessed from the lands in question, his claim for restitution is not maintainable. 3. In the present writ application the petitioner has made several assertions to show that the proceeding u/s 68 of the Act is not maintainable as the properties neither belonged to the deity nor he is a person evictabie Under Section68 of the .Act. He has also challenged the revisionsl order of the Commissioner of Endowments on the ground that rejection of the prayer for restitution was on erroneous view of law. During the course of argument Mr. He has also challenged the revisionsl order of the Commissioner of Endowments on the ground that rejection of the prayer for restitution was on erroneous view of law. During the course of argument Mr. Misra, appearing for the petitioner did not press his prayer for quashing the proceeding u/s 68 of the Act and, in our opinion rightly so, as the maintainability of the proceeding and the merits of the claim of the petitioner as regards the lands in question are available to be gone into by the Assistant Commissioner of Endowments in the proceeding u/s 68 of the Act, which is still pending, it is open for the Assistant Commissioner of Endowments to examine as to whether the proceeding initiated by the present opp. party No. 3 is maintainable and if the 'present petitioner is evictable in that proceeding. We therefore, express no view so for as the merit's of the contentions are concerned," 4. The only question which remains to be decided in this writ application is -and to whether the petitioner's prayer for restitution should have been allowed by the Assistant Commissioner Endowments and the Commissions- o; Endowments, The Assistant Commissioner of Endowments as well as the Commissioner of Endowments have relied upon the decision of this Court reported in AIR 1989 Ori 3 (supra) and held that Section 144 C.P C. does not apply to a case where the ex parts decree is set aside by the same Court i,e; what has been precisely held in the decision of this Court referred to above. The correctness of the principle decided in that case waiguesdonecf " by the Seamed counsel for the petitioner and we, therefore, proceed-to analyse the scope and object of the said Section. 5. The doctrine.,of, restitution ' is based on equitable principle. Their Lordships of the". Supreme Court in a decision reported in AIR 1966 S.C. 248 (Binayak Swain v. Ramesh Chandra Panigrehi and another)- have dearly explained the doctrine of "restitution saying that on the rever- sal of she decree the law imposes an"-obligation' on the party who received of the benefit of the exraneous decree to make restitution to the other party for what he has lost .This obligation arises automatically on the reversal or modification of, the decree and necessarily carries with it the right to . restitution of all that has been done under', the erroneous decree and the Court in making restitution is bound to restore the parties so far as they can be requested to the same position they were, in at the time when the Court by its erroneous action has dispossessed them from. This equitabledoctrine has been embodied in Section 144, C.P.C in the following words : "144. 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 as will, so far as may be, place the parties in the position which they would have occupied but for such decree of 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 casts and for the payment of interest, damages, compensation and has no profits, which are property consequential on such variation, reversal. setting aside or modification of the decree or order. Explanation: For the purposes of Sub-section(1) the expression Court which passed the decree or order" shall be deemed to include. (a) where the deoree 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; (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. 2. No suit shall be instituted for the purpose of obtaining any restitution or otter relief which could be obtained by application under Sub-section (1) It may be noted that the said Section has undergone a change by the amendment made by Act 104 of 1976. 2. No suit shall be instituted for the purpose of obtaining any restitution or otter relief which could be obtained by application under Sub-section (1) It may be noted that the said Section has undergone a change by the amendment made by Act 104 of 1976. It has also been held in National Plastic and Allied Industries, Lucknow Vs. Union of India (UOI) and Others, that Section 144. C P.C is not exhaustive and restitution can be granted by the Court under its inherent powers even if the case does not fall within the scope of the Section. The words "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" have been substituted for the words "varied or reversed the Court of first instance" by virtue of the amendment. The words "varied" or "reversed" as it occurred prior to the amendment came up for interpretation by the Full Bench of Patna High Court reported in Maqbool Alam Khan Vs. Mt. Khodaija Begum, ) where their lordships have explained the said words by. saying that the phrase "varied or reversed" in Section 144 is unqualified and ought to receive its full force and effect. There is no warrant for construing the Section in a limited sense to mean that the decree should be "reversed or varied" only by a superior Court in the same proceedings. The decree may be varied or reversed*' not only by an appeal but by revision in a superior Court. Similarly the Court may review its own decree and set it aside. The Section does not provide for an order of restitution to be made in any particular form or proceeding or by any particular Court. A contary view was, however, expressed by some High Courts, The amendment made to the said Section favours the view taken by the Patna High Court In the aforesaid case as by virtue of the amendment it has now been amplified that the variation or reversal of the decree or order may be in any appeal, revision or other proceeding or the same may be set aside or modified in any suit instituted for the purpose. Thus the scope and object of Section 144 has been statutory made wider to serve the equitable principle underlying the doctrine of restitution. 6. Thus the scope and object of Section 144 has been statutory made wider to serve the equitable principle underlying the doctrine of restitution. 6. In the decision of this Court referred to above, the learned Single Judge has taken a view that Section 144 shall be applicable only if the decree or order is varied or reversed in appeal, revision or other proceedings basing on the plain language of the Section. According to the view taken by the learned Judge, the term "set aside" in Section 144 would carry the same meaning as in Order 9, Rule 13, C.P. C. and the legislature having not used the term "set aside" in the first clause of the Section, it would not be applicable if the decree or order set aside by the same Court in any other proceeding. The discussions made in the judgment show that the learned Judge is of the view that the other eventuality where Section 144 may be applicable, is in cases where the judgment or order is set aside or modified in any suit instituted for the purpose. With all respects to the learned Judge, we find it difficult to subscribe to the said view. Taking the plain language of the Section and" applying the same reasonings as has been given by the learned Judge in the aforesaid case, restitution u/s 144. C. P C. would not be available even if the appellate or revisional Court sets aside the decree or order without varying or reversing the same as would be in the event of a remand by the appellate Court setting aside a decree which amounts to variation of the decree as the decree which was enforceable is rendered ineffective by the same being set aside. The Supreme Court in the aforesaid decision dealt with a case where the decree was set aside in appeal and the case was remanded for fresh disposal. Their Lordships, therefore, considered the setting aside of the decree in such circumstances as variation Or reversal of the decree and held that the judgment-debtor was entitled to restitution. The effect of setting aside a decree is to render the decree or order non-existent. Their Lordships, therefore, considered the setting aside of the decree in such circumstances as variation Or reversal of the decree and held that the judgment-debtor was entitled to restitution. The effect of setting aside a decree is to render the decree or order non-existent. Thus the decree which was set aside loses its existence altogether and the law raises an obligation on the party who received the benefit of the erroneous order or decree to restitution to the other party for what he had lost by enforcing the erroneous decree or order. In order to entitle a person to apply under this Section, two conditions are essential to be satisfied, namely, (1) be must be a party to the decree or order which has been viried, reversed or set aside; and (ii) he must be entitled to the benefit of restitution as a consequence of reversal, variation or setting aside of the decree, having suffered any loss by reason of enforcement of the decree which has been later on varied, reversed or set aside. The substance of the Section is based on the equitable principle and the right to be substituted exists in favour of a party apart from the mode prescribed in Section 144,C P.C. Before the amendment of the said Section even though the scope of Section 144 C. P. C. was narrower the High Court of Bombay in A. I. R. 1968 Bombay' 57 (Miss. Devi Ramchand Waswani v. S. B. Bastikar) took the view that the said Section provides restitution for every case of a reversal or variation including the reversal by a Superior Court, by the same Court in the same proceeding or by a different Court indifferent proceedings We do not read any restriction in the Section for its application at least where a decree is set aside by the same Court in a proceeding under Order 9, Rule 13, C.P.C. In a decision reported in 1981 Cal 257 (Mst. Fatima Khatoon v. Swaran Singh, their Lordships have expressed that the words "varied or reversed" have been used having regard to the effect or result of the proceedings set out. Fatima Khatoon v. Swaran Singh, their Lordships have expressed that 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, C. P. C. This interpretation is consistent with the legal conception that Section 144, C. P, C, only embodies the doctrine of restitution and does not confer a new o substantive right which a successful party is possessed of under the general law. ft merely regulates the exercise of the rights already existing with the party and prescribes a convenient procedure therefor. 7. The words other proceedings" in Section 144, Sub-section (1) would take within its ambit the order passed by the same Court under Order 9, Rule 13, C.P.C setting aside the ex parte order or decree as a consequence of which the ex parte decree passed by the Court is wiped off, It that ex parte decree had been executed by which the parties have been made to alter their possession, they are entitled, as a matter of equity, to be put back to the position they were occupying, before the decree which was. set aside was passed. Thus in our considered opinion, the aforesaid decision of this Court doe; not express the correct view of law. 8. In the present case, the petitioner was dispossessed by virtue of the ex parte order by the Assistant Commissioner" of Endowments. Admittedly the said ex parte order has now been set aside pursuant to an application filed for the purpose. The petitioner, if dispossessed by reasors of the ex parte order, is entitled to be restituted to the properties which he was possessing prior to the passing of the ex parte order. Thus, the rejection of the prayer for restitution was not Justified in Saw. 9. The Commissioner of Endowments in the concluding paragraph of his judgment has observed that since in his application for restitution the petitioner maintains that he is still continuing in possession in spite of the execution of the writ of delivery of possession, his claim for being restituted is not entertainable, The present opp. party No, 3, according to whom the possession was delivered in his favour through the Inspector of Endowments, denied the aforesaid allegation of the petitioner. party No, 3, according to whom the possession was delivered in his favour through the Inspector of Endowments, denied the aforesaid allegation of the petitioner. Curiously the Commissioner did not resolve the factual dispute as to whether or not the possession of the properties, was delivered pursuant to the ex parte order. All that the petitioner stated in his application is that he is continuing i possession of the properties in spite of the alleged delivery of possession. Even though it is assumed that the petitioner was continuing in possession, it can never be said that he was entitled to possess the property after the ex parte order and its due execution. Unless the peitioner is restituted he probably cannot protect his possession. Therefore, refusal of the prayer on that count is untenable. 10. For the reasons stated above, we would allow this writ application, set aside the revisional order of the Commissioner .of Endowments in Annexure-17 and direct expeditious restitution of the properties within a month to the petitioner. The Assistant Commissioner of Endowments before whom the proceeding u/s 68 of the Act is pending should dispose of the proceeding expeditiously preferably within 4 (four) months from the date of receipt of this order. No costs. S.K. Mohanty, J. I agree. Final Result : Allowed