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2007 DIGILAW 670 (KAR)

V. SIDDAMMA v. BIDARI SADYOJATHAPPA

2007-10-11

V.JAGANNATHAN

body2007
JUDGMENT Jagannathan, J. The appellant herein was the petitioner before the trial court in miscellaneous case No.154/1984 and the petition filed under Section 144 of CPC by her for restoration of suit schedule properties and also for compensation or damages for illegal occupation by the respondents before the trial court was allowed in part and against the said order passed by the trial court, the respondents preferred R.F.A.No. 586/87 before this court and subsequent to transfer of the appeal to the District Court and being further transferred to the lower appellate court it was numbered as R.A.No. 76/2000 and the lower appellate court, after considering the contention urged before it by the respondents, came to the conclusion that the trial court could not have entertained the petition filed under Section 144 of the CPC as the necessary ingredients were not fulfilled and consequent to the said finding, the appeal preferred by the respondents was allowed and the order passed by the trial court in Misc.case No. 154/84 was set aside and the petition filed under Section 144 of CPC also came to be dismissed. Aggrieved by the dismissal of the petition by the Court below, the petitioner before the trial court has preferred the second appeal. 2. I have heard the learned counsel for the appellant and the learned counsel for the respondents. This court at the time of admission had framed the following substantial questions of law for consideration: i) Whether the lower appellate court is legally correct in arriving at its finding that appellant’s application under Section 144 CPC made before the trial court in Misc.Case No. 154/84 was not maintainable in law and, therefore, she was not entitled to restitution of the property in question? ii) If so, what order? 3. Learned counsel for the appellant submitted that the lower appellate court was in error in upsetting the order passed by the trial court and as the lower appellate court did not take into consideration the order passed by this court in R.F.A. Nos. 82/1973 and 92/1973 and when this court had observed while disposing of the said R.F.As. under common judgment one Basamma had become the absolute owner of the suit properties having got them under registered Will executed in her favour by her husband Siddappa on 5.4.1965, the lower appellate would not have set aside the order passed by the trial court. 4. under common judgment one Basamma had become the absolute owner of the suit properties having got them under registered Will executed in her favour by her husband Siddappa on 5.4.1965, the lower appellate would not have set aside the order passed by the trial court. 4. Learned counsel for the respondents supported the order passed by the lower appellate court to submit that no error has been committed by the lower appellate court in dismissing the petition filed under Section 144 of the CPC. 5. Before going into the question of sustainability of the order passed by the lower appellate court, brief facts will have to be stated, which are as under: One Siddappa had two wives viz., Veeramma and Basamma. The first wife Veeramma had five sons and two daughters. Basamma had no issues. Siddappa died on 26.6.1975 and his first wife died earlier on 6.2.1957. One of the sons of Veerarnma viz., Sadyojathappa along with his younger brother filed O.S. No.15/1966 against Basamma and in the said suit, the other sons and daughters of Veeramma were made the defendants. Basamma also died on 22.1.1979. The said suit was decreed by the trial court and in the course of the said decision, the court took the view that some of the properties were separate properties of Siddappa and some other properties were the joint family properties. The trial court also held that the Will executed by Siddappa in favour of Basamma on 5.4.1965 was genuine and valid Will. Both the parties preferred regular first appeal before this court and the appeal preferred by Basamma was numbered as RFA No.82/1973 and the appeal preferred by the plaintiffs in the said suit was RFANo.92/1973 and while the two appeals were pending, an application was filed by Basamma’s brother and his sister and the said application was allowed by holding that the said applicants are the L.Rs. of Basamma. Thereafter both the appeals were clubbed together by a Division Bench of this court and passed a common judgment. Insofar as the rights of the parties are concerned, it was observed that the amendment sought pertaining to the properties of Basamma by way of amendment of pleadings cannot be allowed as the same would require recording of the evidence with regard to the validity of the Will and the gift deeds and the alienation of properties made by Basamma during her lifetime. Therefore, this court let it open to the parties to bring a separate suit to enforce their rights, if any, in the properties left over by Basamma on her death. 6. Subsequent to the above events, the appellant-respondent herein filed a petition under Section 144 of CPC for restitution of an item of property bearing No.529/1, 529/2, 529/3, 529/4 and 529/5 situated in Chamarajpet of Davangere City, and without taking into consideration the observations of the High Court, the trial court allowed the said petition in part only insofar as the restoration is concerned but declined to grant the relief for damages or compensation. It is this order of the trial court that led to the appeal being preferred by the respondents herein and consequent to the appeal being allowed and the petition under Section 144 being dismissed by the lower appellate court, the original petitioner preferred the second appeal. 7. Having thus heard the submissions made by the learned counsel for the parties and taking into account the various events, the fate of this appeal depends upon the provisions of law contained in Section 144 of the CPC and the direction given by this court while disposing of this appeal by a common judgment. Section 144 of CPC reads as under: “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 in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far a 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 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). 8. A plain reading of the above provision will make it clear that the scope for making an application for restitution will arise only where a decree is varied or reversed, set aside or modified in any suit. Therefore, it will have to be verified as to whether in the instant case, the judgment and decree passed by the trial court in O.S.No.15/1966 underwent any variation or reversal in any of the further proceedings or not. 9. The suit filed in O.S.No.15/66 was decreed by the trial court and this court while disposing of R.F.A.Nos.82/1973 and 92/1973 arose out of trial court’s judgment and decree, has observed at para 16 of its judgment as under: “Therefore, the amendment which mainly relates to the properties of Basamma on her death, cannot be allowed as it would require the recording of evidence with regard to the validity of the will and the gift deeds and the alienation of properties made by her during her life time. That would be a separate cause of action necessitating full-fledged hearing, which has arisen subsequent to the passing of the decree in the suit and during the pendency of these appeals. Therefore, we are not persuaded to allow the amendment at this stage as it is likely to re-open the entire proceeding which has been pending ever-since 1966. The interlocutory application is rejected. Therefore, we are not persuaded to allow the amendment at this stage as it is likely to re-open the entire proceeding which has been pending ever-since 1966. The interlocutory application is rejected. If the parties are so advised, they are at liberty to bring a separate suit to enforce their rights, if any, in the properties left over by Basamma on her death.” 10. From the above observations of the Division Bench of this court in the common judgment rendered in the above two appeals, insofar as the rights of the parties with regard to properties left over by Basamma on her death are concerned, they were given liberty to bring a separate suit to enforce their rights. In other words, the judgment and decree passed by the trial court, did not undergo any variation or modification or for that matter reversal at the hands of this court. Therefore, the circumstances for making an application under Section 144 for restitution did not arise. The lower appellate court has rightly observed that the conditions to be fulfilled to invoke the provisions of Section 144 were not met in the instant case and therefore, the learned judge of the lower appellate court dismissed the petition filed under Section 144. At this juncture, it has to be mentioned that the Apex Court in the case of Binayak Swain Vs. Ramesh Chandra Panigrahi & Anr. has explained the doctrine of restitution by observing thus: “The principle of the doctrine of restitution is that on the reversal of a decree, 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 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 restored, to the same position they were in at the time when the court by its erroneous action had displaced them from.” 11. In another decision in the case of ( AIR 1953 SC 136 ) dealing with the scope of Section 144 of CPC, the Apex Court has observed thus: “An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. The decree-holder in the present case has derived no advantage to which he was not entitled and the judgment-debtor has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decree-holder. In the words of Rankin C.J., in Doyal Sarkar V. Tari Deshi, 59 Cal. 647, the judgment-debtor is not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree, the judgment-debtor was clearly not entitled to restitution.” 12. In the light of the aforesaid principles of law laid down with regard to the scope of Section 144 of the CPC and in the case on hand, the facts and circumstances not indicating any variation, reversal or modification of the judgment and decree passed by the trial court, I am of the view that the order passed by the lower appellate court does not call for any interference and hence, the substantial questions of law raised for consideration are also answered accordingly. 13. In the result, the appeal has to fail and it is so dismissed. It is also made clear that in view of the observations made by a Division Bench of this case while disposing of the two R.F.As. 13. In the result, the appeal has to fail and it is so dismissed. It is also made clear that in view of the observations made by a Division Bench of this case while disposing of the two R.F.As. mentioned above, the parties are at liberty to file the suit in respect of the rights which they claim under the Will said to have been executed by Basamma, the said liberty is always there for the parties to approach the civil court for the necessary relief. As the appellant/petitioner, has been prosecuting the matter before the court below and also before this court in the second appeal, in the event of the appellant filing a suit as per the direction given by a division bench of this court in the aforesaid R.F.As., the question of limitation coming in the way shall not arise. No costs.