Judgment : 1. The first appellant filed the above appeal aggrieved against the order of the lower appellate court, (Sub-Judge, Tindivanam) in C.M.A.S.No.10 of 1983. The first respondent along with others filed O.S.No.165 of 1965 praying for a decree for declaration of title and recovery of possession of the seven items of properties. The lower court in its judgment dated 3. 1966 and the plaintiffs filed Cross Objections aggrieved against the said judgment. The lower appellate court dismissed the said appeal and allowed the Cross Objections. Aggrieved against the same, further appeal in S.A.No.734 of 1969 was filed by the first appellant herein. This Court modified the decree granting relief to the plaintiff/first respondents herein only with respect to item No.1, one acre and 10 cents in Item No.2 and the well in Item No.4. Pending the second appeal, the High Court, in C.M.P.No.7521 of 1969 directed the first defendant/1 st appellant herein to pay some amount as a condition for granting stay. Pursuant to the said direction a sum of Rs.5,000 under Exs.A-5 and A-6 was deposited. 2. The 1st defendant/1 st appellant filed an application in E.A.No.382 of 1980 on the file of the District Munsif Court, Tindivanam, under Section 144 of the Code for recovery of the said amount from the first plaintiff. In the petition, it is stated that if the respondent fails to pay the amount it has to be recovered by making civil arrest, under Order 21, Rule 37 of the Code. The application was resisted by the respondent. The lower court allowed that application. Aggrieved against the same, the first plaintiff filed C.M.A.No.10 of 1983 on the file of the Sub-Court, Tindivanam. The Sub-Court allowed the appeal on the ground that the appellant should not have filed one application for two reliefs, namely under Section 144 and under Order 21, Rule 37 of the Code and that the first appellant herein should have taken separate proceedings to recover the amount and not by filing a petition under Section 144 of the Code as the payment of mesne profit was not the issue in the earlier proceedings. Aggrieved against the same, the 1st appellant have filed the above appeal. After his death other appellants have been brought on record. 3. Aggrieved against the same, the 1st appellant have filed the above appeal. After his death other appellants have been brought on record. 3. The learned counsel appearing for the respondents, to sustain the order of the lower appellate court, has submitted that the order passed in C.M.P.No.7521 of 1969 in S.A.No.734 of 1969 was not varied or reversed or set aside. So, the appellants cannot invoke Section 144 of the Code to recover the amount deposited and withdrawn by him. To appreciate the said submission, it is necessary to extract the said Section itself. 4. Section 144 of the Code is as follows:- "144. Application for restitution:-(1) where and in so far as a decree is varied or reversed in any appeal, revision or other proceedings 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 maybe, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been 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 consequential on such variation, reversal, setting aide 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 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; .(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 other relief which could be obtained by application under sub-section (1)" 5. What is manifest from the abovesaid provision of law is that when a decree or order is varied or reversed, the Court of first instance shall cause such restitution to be made as will 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, the Court, for this purpose, may make any orders, consequential on such variation or reversal such refund of costs and for the payment of interest, damages, compensation and mesne profits. 6. The principle, on which Section 144, Civil Procedure Code, providing for restitution is based, is that an act of the Court shall prejudice no man. Actus curiae neminem gravabit Lord Cairns said in Rodger v. Comptoir D Escompte De Paris - One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors. 7. The word restitution is used in Section 144 of the Code amounts to restitution to a party, on the variation or reversal of a decree what has been lost to him in execution of the decree or directly in consequence of the decree, thought not through proceedings under it. The right to claim restitution is founded on the reversal of a decree in appeal and the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what h e has lost. This right arises automatically on the reversal or modification and necessarily carries with it the right to restitution of all that has been done under the erroneous decree. Dealing with the question on first principles it has been pointed out by their Lordships of the Privy Council in Jai Berham v. Kedar Nath, AIR 1922 PC 269 that “it is the duty of the Court under Section 144 of the Civil P.C. to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said Section. Nor indeed does this duty or jurisdiction arise merely under the said Section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved" 8. The power of Court to grant restitution is not confined to the cases covered by the provisions of Section 144, Civil P.C., it extends also to cases which do not come strictly within this Section. The reason is that a Court has an inherent power under Section 151 of the Code irrespective of this section to order restitution. 9. In Monoharlal v. Rai Bahadu Rao Raja Seth Hiralal, AIR 1962 SC 527 , the Apex Court has held as follows:- "Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessarily for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any power outside the limits of the Code" 10. In Ramanatha Chettiar v. Rathinammal, 1974 (II) MLJ 449 , Maharajan, J., has held as follows:- In those circumstances, both the Courts below were wrong to hold that Section 144 of the Civil Procedure Code in terms applied to the facts of this case. As has been held by a Division Bench of this Court in Chockalingam v. Krishna, AIR 1964 Mad. 404 , Section 144 embodies the cardinal principles of law that acts of Courts should not be allowed to work any injury on the suitors and it is the clear duty of the Court to place the parties in the position which they would have occupied but for the erroneous order or decree which it had passed. 404 , Section 144 embodies the cardinal principles of law that acts of Courts should not be allowed to work any injury on the suitors and it is the clear duty of the Court to place the parties in the position which they would have occupied but for the erroneous order or decree which it had passed. The section it not exhaustive of the powers of the Court to order restitution and in suitable and appropriate cases, restitution can be and has been ordered in exercise of the Courts inherent jurisdiction under Section 151 of the Civil Procedure Code. Where Section 144 does not apply and the inherent jurisdiction under Section 151 is invoked, the Court will order restitution only if the ends of justice require it, or to prevent abuse of the process of the Court. This is a consideration, which is relevant while exercising jurisdiction under Section 151 of the Civil Procedure Code but entirely irrelevant while exercising jurisdiction under Section 144. If it is under Section 151 that restitution is to be ordered in this case, it is necessary to find out whether the ends of justice require that the Court should order restitution. In fact, Section 151 of the Civil Procedure Code prescribes that the Court shall have inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. If Section 144 were to apply, restitution would be automatic and there would be no room for equitable considerations which would govern restitution, under Section 151 of the Civil Procedure Code." 11. In Inderam v. Ramni, AIR 1961 M.P. 200 while dealing with similar issues, the learned judge has held as follows:- “I am unable to accept this restricted interpretation of Section 144 of the Civil Procedure Code. The wording of the section does not warrant an interpretation that the question of restitution would arise only if the reversed decree is executed on the basis of the view taken by the learned Judges of the different Division Benches, it can be emphatically stated as a correct proposition of law that the question of restitution may arise even though the reversed decree is not executed and even though the re lief sought in the restitution proceedings is not specifically claimed in the plaint. The wording of the section is wide enough to include situations where a party is deprived of the benefit of an order or decree or a Court on account of a wrong reversal or variation by the appellate decree is reversed or varied by the next Appellate Court or the final Court of appeal. If these circumstances be present, the question of restitution will properly arise on such correct reversal of an incorrect reversing decree. In that event, the Court of first instance has the power to order refund of costs, payment of interest, damages, compensation and mesne profits, which would be properly consequential on such variation or reversal. It may be that a suitor may have claimed mere possession of property in the plaint, without claiming any of the items mentioned in Section 144 of the Civil Procedure Code. But, that, by itself, will not preclude the Court granting restitution to grant such further reliefs as would be properly consequential on such variation or reversal." 12. In Ratnaji v. Ramakirshnayya, AIR 1937 Mad. 95 , the learned Judge has held as follows:- “There can be no question that Section 144 would not apply to the case but the nonapplicability of Section 144 would not prevent a Court from granting restitution in the exercise of its inherent powers and this is eminently a fit case wherein the Court should exercise its inherent powers. It is a well-settled principle of law that where a Court has wrongly paid the money to a person not entitled thereto, it has not only the power but it is also its duty to recover it from him. In O.S.No.657 of 1928 whe n the Court appointed a receiver and he deposited the money into Court, the moment the plaintiff succeeded in the suit it was the duty of the court to pay over the said money to the plaintiff. The said fund was held in trust for the plaintiff by the Court but owing to an erroneous view, it parted with the said fund to a person who was not entitled thereto. When it was found that the view taken by the Court was wrong, there is inherent jurisdiction in the Court to call back the said money. Curgeuven, J., in 57 Mad. When it was found that the view taken by the Court was wrong, there is inherent jurisdiction in the Court to call back the said money. Curgeuven, J., in 57 Mad. 849 at p. 854, after referring the observation of Cairus, L.C., 1809 (2) PC 393, viz., "one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors,. observed thus: This statement of the law would appear generally enough to cover a case where the executing Court has been made to take a wrong step by an erroneous decision passed by another Court" 13. In S. Chokalingam v. N.S. Krishna, AIR 1964 Mad. 404 the Division Bench of this Court has held as follows:- “This provision merely embodies the cardinal principle of law that acts of Court should not be allowed to work any injury on the suitors and it is the clear duty of the Court to place the parties in the position which they would have occupied but for the erroneous order or decree which it had passed. The Section is not exhaustive of the powers of the Court to order restitution and in suitable and appropriate cases, where ends of justice require, restitution can be and has been ordered under the Courts inherent jurisdiction. For instance, variation of the decree or the setting aside of the decree need not necessarily be in an appeal but it may be in a separate proceeding, in which case restitution is ordered under inherent jurisdiction apart from the provision under Section 144. It is true that the power and duty to grant restitution which is based upon principles of equity is to restore the status quo between the parties. But at the same time it may be noticed that in some cases it will not be possible to restore the exact status quo ante between the parties on account of certain altered situations. But at the same time it may be noticed that in some cases it will not be possible to restore the exact status quo ante between the parties on account of certain altered situations. That is just the reason, why the language employed in the Section is not absolute in character but specifically provides that 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 as well, as far as may be, place the parties." In other words, the significance of the use of the words as will, so far as may be should receive their proper meaning in a particular context. The language of S.144 does not admit of an unqualified absolute interpretation that the ultimate result of the case is to be completely ignored and restitution ordered in any event, merely because the decree in execution of which the sale took place is varied or reversed. In the matter of restitution, equitable considerations are certainly relevant and essential. While exercising its equitable jurisdiction under S. 144, the Court should act rightly and fairly according to the circumstances towards all the parties involved. Vide Jai Berham v. Kedarnath Marwari, 44 MLJ. 785 : AIR 1922 P C 269" 14. In view of the above discussion, this Court can safely come to the conclusion that the application filed by the first appellant is maintainable. In view of the fact that the first appellant had deposited the amount as directed by the High Court and the same was withdrawn by the first respondent, he has to restore the status quo by paying the same. The only question to be decided is the quantum of the amount to be repaid to the appellants by the respondents. 15. Unfortunately, the first appellant filed the petition claiming both restitution and also for civil arrest, in view of the dispute raised by the first respondent that he is entitled to have set off his claim. But both the reliefs cannot be asked for in the same petition. First, the quantum of amount to be restituted has to be decided in the said petition. Thereafter the appellants can proceed with the execution proceedings, that too, if the suit amount is not paid. 16. But both the reliefs cannot be asked for in the same petition. First, the quantum of amount to be restituted has to be decided in the said petition. Thereafter the appellants can proceed with the execution proceedings, that too, if the suit amount is not paid. 16. The lower appellate court is not correct in rejecting the case of the appellant on the basis that the first respondent had adjusted the amount to be restituted while claiming mesne profits in O.S.No:11 of 1978. But the court did not grant the relief as prayed for. So, the respondents cannot take advantage of the same, so, the order of the lower appellate court on Issue No:2 cannot be sustained. 17. The orders of the courts below are hereby set aside and remanded back to the trial court to quantify the amount payable by the respondents to the appellants and thereafter it is open to the appellants to take appropriate execution proceedings to recover the amount quantified in accordance with law. 18. With the above observations, this C.M.S.A. is allowed. No costs.