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2015 DIGILAW 143 (RAJ)

LRs. of Tej Singh v. Gomati Devi

2015-01-16

BANWARI LAL SHARMA, SUNIL AMBWANI

body2015
JUDGMENT : Hon'ble AMBWANI, ACTG. C.J., J.—This Special Appeal arises out of the order passed by learned Single Judge on 13.02.2013, by which he had dismissed the contempt petition on the ground that there is no order-sheet of the court nor any appearance of the counsel for respondent in the order and, therefore, the facts narrated to the counsel appearing for the petitioner in contempt petition appear to be false. 2. A Civil First Appeal No.59/1993 is pending against the decree of the civil court by which the suit for cancellation of sale-deed was dismissed. It was alleged that during the pendency of the appeal, the plaintiff had demolished the partition wall of the terrace which divided the property. An application was filed by the respondent (defendant) in the suit for restoration of the boundary wall on which learned Single Judge passed an order as follows: "Heard on stay application. The learned counsel for the appellants Mr. Hemant Balani submitted that during some criminal proceedings before the police authorities, the appellants have given undertaking to maintain status quo of the suit property. On the other hand, Mr. O.P. Mehta submitted that the partition wall between the property of the appellants and the defendants was demolished by the appellant allowing them free way to encroach upon the property of the respondents and therefore, they should restore the status quo ante and reconstruct the partition wall between the two properties and subject to their rights in the present appeal after restoring such status quo ante, further status quo should be maintained by both the parties. He has drawn the attention of the Courts towards the photographs of the site in question produced along with the stay application. Having heard the learned counsel, it appears that to maintain peace and respective rights of the parties, status quo ante should be restored in the present case. Accordingly, the appellants are directed to reconstruct the partition wall between the two properties adjacent to each other, one belonging to the appellants and other belonging to the respondents and thereafter both the parties shall maintain status quo in the matter subject to final decision of this appeal. Such partition wall shall be reconstructed by the appellants within one month from today. The stay application is accordingly disposed of." 3. Such partition wall shall be reconstructed by the appellants within one month from today. The stay application is accordingly disposed of." 3. We are unable to appreciate as to how could an order of restitution of partition wall, which was alleged to have been demolished by the plaintiff, who had lost the suit for cancellation of the sale-deed, be directed to be restored in a pending appeal. In such a case, the only remedy open to the defendant was to file a separate suit. 4. We may observe here that the suit was not for injunction and that the protection of the partition wall was not the subject matter of the suit and since the defendant has an independent right for seeking injunction, he could not have claimed restitution of the property, which was not the subject of the suit, in an appeal, which is a continuation of the suit. The partition wall was not demolished in violation of any order passed by the Court. The powers of restitution under Section 144(1) of the Code of Civil Procedure are available where any decree or order is varied or reversed in any appeal or revision or in any other proceedings or is set aside or modified in any suit instituted for that purpose, to restore the parties, on an application for restitution, for such purpose. In such cases in view of Neelathupare Kummi Seethi Koya Phangal (dead) by LR's vs. Montharapalla Padippua Attakoya ( AIR 1994 SC 1591 ), the powers of restitution should ordinarily be exercised by the Court of first instance. The Court of first instance would, therefore, mean the Court, which passed the decree or order. Transferee executing Court was not held to be a Court which had passed the decree or order. The High Court hearing an appeal from a decree, by which the suit for cancellation of sale deed was dismissed, cannot be treated to be the Court of first instance, to pass an order for restitution. Such powers in view of specific provisions in Section 151 of Code of Civil Procedure are not available under Section 151 of the Code of Civil Procedure, nor the extraordinary powers under Article 226 of the Constitution of India are ordinarily available to High Court in Civil Appeal, to pass orders of restitution. 5. Such powers in view of specific provisions in Section 151 of Code of Civil Procedure are not available under Section 151 of the Code of Civil Procedure, nor the extraordinary powers under Article 226 of the Constitution of India are ordinarily available to High Court in Civil Appeal, to pass orders of restitution. 5. In order that Sec. 144 of the Code of Civil Procedure may apply to a case, three conditions are necessary to be satisfied, namely, (i) the restitution sought must be in respect of a decree or order which had been varied or reversed; (ii) the party applying for restitution must be entitled to the benefit under a reversing decree or order; and (iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. Where no decree or order is reversed, Sec. 144 has no application. The word "restitution" in its etymological sense means restoring a party on the modification, variation or reversal of a decree or order. In South Eastern Coalfields Ltd. vs. State of M.P. ( AIR 2003 SC 4482 ), it was held that what has been lost to the party in execution of decree or order of the Court or in direct consequence of a decree or order, may be subject to restitution. It was held that the term 'restitution' issued in a sense to return or restore some specific thing to its rightful owner or status; compensation for benefits derived from a wrong done to another; and compensation or reparation for the loss caused to another. Even away from Sec. 144, the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. The discretionary powers of restitution, however, are akin to the powers under Sec. 144 and may not be exercised for restitution where the subject matter of the suit or a decree to which the plaintiff was not found entitled, is different than the restitution suit filed by the applicant. In any case, the existence of a right, which flows from a decree or order, which has been violated, in order to cause a wrong to the other side, is necessary for exercising the power of restitution. 6. In any case, the existence of a right, which flows from a decree or order, which has been violated, in order to cause a wrong to the other side, is necessary for exercising the power of restitution. 6. The order dated 27.07.2012 passed in S.B. Civil First Appeal No. 59/1993 on an application filed by defendant-respondent for restitution of the boundary wall was passed beyond the jurisdiction of the Court in a pending civil appeal. 7. In the aforesaid circumstances, we do not propose to interfere with the order of learned Single Judge dated 13.02.2013, refusing to initiate proceedings of Contempt of Courts for compliance of the order dated 27.07.2012. 8. The Special Appeal is misconceived and it is accordingly, dismissed.