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2023 DIGILAW 3074 (MAD)

Maruchamy v. K. P. Pasupathi

2023-09-11

V.LAKSHMINARAYANAN

body2023
JUDGMENT (Prayer: Civil Revision Petition under Article 227 of the Constitution of India to set aside the fair and final order dated 27.04.2019 made in I.A.No.375 of 2018 in O.S.No.67 of 2008 on the file of the I Additional District Munsif, Bhavani by allowing this CRP.) 1. This is an unfortunate case. This is a revision arising against dismissal of a petition filed for restitution. The first defendant is the petitioner before me. The defendant suffered an exparte decree on 04.10.2008. To set aside the same, he filed an application with condonation of delay in I.A.No.262 of 2009. The said application was dismissed on 12.02.2010. Thereafter, he preferred a revision before this Court in C.R.P.(NPD) No.4944 of 2011. The said revision came to be allowed condoning the delay on payment of costs of Rs.5,000/- with a further direction to dispose of the application under Order 9 Rule 13. This order was passed on 21.02.2017. The condition having been complied, the application to set aside the exparte decree was taken up. The application under Order 9 Rule 13 was taken up for disposal and the said application was allowed on 13.10.2017. 2. In the meantime, in order to execute the exparte decree for rectification of a sale deed, an application was filed in E.P.No.8 of 2009. The said E.P., was allowed and a sale deed was executed in favour of the holder of the exparte decree. Thereafter, he took out an application in E.A.No.319 of 2010 for recording of delivery. On 09.08.2011, the Court recorded that possession was handed over on 04.08.2011 and E.A.No.319 of 2010 was closed. 3. On the setting aside of the exparte decree on 25.10.2017, the parties went for trial and the suit was dismissed after contest on 12.03.2018. The first defendant from whom possession was taken by virtue of being judgment debtor pursuant to the exparte decree took out an application for re-delivery in I.A.No.375 of 2018. 4. This application came to be dismissed, against which the present revision has been filed. The ground on which it was resisted was that, as against the dismissal of the suit on 12.03.2018, an appeal had been filed in A.S.No.22 of 2018 and therefore re-delivery should not be ordered. 5. This fantastic proposition of law seems to have been accepted by the trial Court while dismissing the petition for re-delivery. The ground on which it was resisted was that, as against the dismissal of the suit on 12.03.2018, an appeal had been filed in A.S.No.22 of 2018 and therefore re-delivery should not be ordered. 5. This fantastic proposition of law seems to have been accepted by the trial Court while dismissing the petition for re-delivery. It is against this order the present Civil Revision Petition has been preferred. 6. Heard Mr.V.Venkatesh for Mr.S.Lakshmanasamy. The respondents though served, have not entered appearance. 7. The rule of restitution is not a statutory rule, but arises Ex debito justitiae. It is the duty of the Court to ensure that a person who has been dispossessed pursuant to an order passed by it, is put back in possession once the decree on the basis of which possession was handed over, is set aside. In this case, not only such decree has been set aside, but after contest, the suit itself came to be dismissed on 12.03.2018. In fact, the Court need not wait for an application by a party for restitution. It is the duty of the Court to ensure that its orders do not affect any party. This is the basis of the principle actus curiae neminem gravabit. 8. In this case, the Court did not restore the parties to the position prior to the date of exparte decree on the said decree being set aside. Not stopping with this, it did not restore the possession of the parties even after the suit has been dismissed. Such a state of affairs is unfortunate. 9. The principle of restitution also creates an obligation on the party to the record, who received the benefit of the erroneous judgment or order, to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution is against the interest of justice. The obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that had been done in the previous decree and the Court making the restitution is bound to restore the parties to the same position as they were at a time when the Court by its erroneous action had displaced them. On the exparte decree having been set aside, it is the right of the party affected by the decree to demand that his dispossession be restored. The corresponding duty is on the Court to ensure that, that right is satisfied. 10. Every minute, nay, every second that the holder of the exparte decree continues to be in possession after exparte decree is set aside, militates against the principles of justice, equity and good conscience. The order of the learned trial Judge cannot stand scrutiny even for a moment. His logic that pendency of the appeal means that there is stay of restitution is not supported by any principle of law or justice or good conscience. The right of restitution under Section 144 is absolute. It recognises the age old principle that a Court should not wait for a party to apply to it for the purpose of being restituted. In fact, an order of restitution is not capable of even being suspended pending appeal. This is the view of this Court in Muthuswamy -Vs- Ramalingam ( AIR 1958 Mad 366 ). 11. I am alive to the position of law that a decree for restitution is a deemed decree under Section 2(2) of the Code of Civil Procedure. If I were to non-suit the civil revision petitioner on the ground that a revision under Article 227 of the Constitution of India is not maintainable against a decree, I would only be adding to the agony of a litigant who had suffered at the hands of the Court. Article 227 of the Constitution of India confers upon me the power to interfere in matters which causes prejudice or acts against the interest of justice or shocks the conscience of the Court. This is one such case. In the present case, the facts are not in dispute. The exparte decree was set aside on 25.07.2017. The obligation on the Court arose on that day and due to the erroneous order of the trial Court, the said obligation has not been discharged for the past six years. Hence, I am constrained to interfere with the order in exercise of the powers conferred on me. 12. Therefore, the Civil Revision Petition is allowed. No costs. The obligation on the Court arose on that day and due to the erroneous order of the trial Court, the said obligation has not been discharged for the past six years. Hence, I am constrained to interfere with the order in exercise of the powers conferred on me. 12. Therefore, the Civil Revision Petition is allowed. No costs. The I Additional District Munsif, Bhavani shall put the petitioner / first defendant in possession of the property from which he was dispossessed pursuant to E.P.No.8 of 2009 forthwith and submit a report to this Court on 27.09.2023. The learned I Additional District Munsif, Bhavani is requested to act on a web copy of this order and not insist on a certified copy of the order to be produced. Call on 27.09.2023.