JUDGMENT : J.J. Munir, J. 1. This is a plaintiff's appeal arising out of an appellate decree passed in proceedings under Section 144 of the Code of Civil Procedure Code, 1908 (for short, 'the Code'). 2. The plaintiff, Abdul Shakoor, instituted Original Suit No.275 of 1988 before the Court of Munsif, Sambhal (now Civil Judge (Jr. Div.), Sambhal), praying that a permanent injunction be granted against the defendant, Khursheed Khan, restraining him from interfering with the plaintiff raising construction over the suit property, himself taking possession of it or raising construction thereon or interfering in any manner with the plaintiff's possession therein. 3. It is pleaded by the plaintiff-appellant (for short, 'the plaintiff') that he is the owner in possession of a plot of land, bearing Khasra No.109/3, admeasuring 14 decimal, situate in Village Jalal Khan, acquiring his title through a sale deed dated 29.05.1985 executed by its former owner, Gayasuddin in the plaintiff's favour. The plaintiff's further case is that some 200 eucalyptus trees are standing on the suit property. The plaintiff sought permission of the Municipal Board, Sambhal to raise constructions on the said property, submitting a plan for the purpose. The plan submitted was objected to by the defendant, urging a case that the defendant is the owner of Khasra Nos.109/1 and 109/2, admeasuring 32 decimal. The plaintiff's case pleaded in the plaint is that the defendant is owner in possession of Khasra Nos.109/1 and 109/2. Khasra No.109/3 is adjacent to the road and the said fact had allured the defendant into harassing the plaintiff. The defendant filed a suit for injunction, bearing O.S. No.86 of 1987, Khursheed Khan vs. Abdul Shakoor, before the Court of Munsif, Sambhal, which is pending. The said suit was instituted with a case that the suit property is part of Khasra No.109, seeking a relief that the plaintiff may not take possession of a specific portion of Khasra No.109 or raise constructions over any specific part thereof. The plaintiff's further case is that before the plaintiff purchased the suit property, Khasra No.109 had been divided and separately entered in the revenue papers in order to obviate any dispute between the purchasers of its different parts. The plaintiff had purchased the suit property for a sum of Rs.20,000/- admeasuring 14 decimals whereas the defendant purchased 32 decimals for a sum of Rs.10,000/-. The plaintiff had purchased the suit property for a sum of Rs.20,000/- admeasuring 14 decimals whereas the defendant purchased 32 decimals for a sum of Rs.10,000/-. The defendant on 26.10.1988 brought forth some masons and labourers, who attempted to lay a foundation for construction in the suit property without authority. It is the plaintiff's case that on the other hand the defendant resists the plaintiff raising constructions in the suit property, preventing him from doing so over his own land. It is on the basis of aforesaid case pleaded that the permanent injunction, above detailed, was sought by the plaintiff. 4. The defendant put in a written statement, pleading a case that the sale deed in the plaintiff's favour is void and not binding upon him. Khasra No.109 was never partitioned by any Court of competent jurisdiction. The said khasra has been wrongly divided against the survey rules. The defendant was delivered possession of the land adjacent to the road by his vendor and since the time of purchase, he is in possession of the said part of the khasra. The eucalyptus trees, standing on the suit property, were planted by the defendant. The plaintiff has caused a loss of Rs.25,000/- to the defendant by destroying the potato crop and water restraint. The further plea raised is that the suit deserves to be stayed under Section 10 of the Code on account of pendency of the earlier suit brought by the defendant, bearing No.86 of 1987 between the same parties, relating to the same property. It is also the defendant's case that the suit is barred by Section 34 of the Specific Relief Act, 1963 and liable to be dismissed. 5. The suit did not run its full course, as would presently be seen. The plaintiff moved an application for interim injunction on 27.10.1988, the same day that the suit was instituted with substantially the same allegations as in the plaint. A temporary injunction was sought to the effect that the defendant be restrained from interfering with the plaintiff raising four walls around the suit property to secure it pending suit. Another application was made for the issue of a commission with the prayer that a commission be issued to ensure construction of the four walls to secure the plaintiff's property. A temporary injunction was sought to the effect that the defendant be restrained from interfering with the plaintiff raising four walls around the suit property to secure it pending suit. Another application was made for the issue of a commission with the prayer that a commission be issued to ensure construction of the four walls to secure the plaintiff's property. Still another application was made praying that Police aid be provided to the Commissioner in order to enable him to secure construction of the four walls. 6. The learned Trial Judge granted an ad interim injunction, restraining the defendant until the date fixed from interfering with the plaintiff raising four walls over the suit property. He also allowed the other application issuing a commission to ensure construction of the walls. The learned Judge also allowed the application providing police aid to the Commissioner to execute the commission, ensuring construction of the four walls. The Commissioner went to the spot in accordance with the commission issued to him and got the construction of four walls completed. He submitted a report of execution of the commission in Court. It is the defendant's case that it is for the first time that he was served with notice of the suit and the interim injunction on 01.12.1988, while the construction of the four walls was completed under the Commissioner's supervision on 22nd and 23rd November, 1988. On the 15th of December, 1988, the defendant filed objections against the interim injunction application. Before the objections under Order XXXIX Rule 4 of the Code put in by the defendant could be heard, the plaintiff moved an application, bearing Paper No.24-C, seeking withdrawal of the suit. The defendant objected to the withdrawal application by his objections, bearing Paper No.25-C. The Trial Judge, after hearing the application for withdrawal of the suit, held that no relief sought by the plaintiff in the suit survives, rendering it infructuous. The suit was dismissed as infructuous on 01.03.1989. 7. Upon dismissal of the suit, Khursheed Khan, the defendant-respondent (for short, 'the defendant') moved an application, bearing Paper No.28-C dated 28.03.1989 before the Court of first instance, seeking restitution of the suit property to the position that it was in on the date of institution of the suit. The application was made under Sections 144 and 151 of the Code. The plaintiff filed his objections to the said application. The application was made under Sections 144 and 151 of the Code. The plaintiff filed his objections to the said application. The application carried allegations to the effect that that suit property was in the defendant's possession and in the garb of the order of temporary injunction passed ex parte, the plaintiff succeeded not only in securing the construction of a boundary wall, but effectively took possession from the defendant. It was the defendant's further case that in securing the ad interim injunction, the plaintiff had concealed correct facts. Once the wall was constructed and his possession secured, he deliberately got his suit dismissed. With the dismissal of the suit, the interim injunction stood automatically dissolved and the defendant entitled to restitution of the suit property to the state that it was in at the time of institution of the suit. The plaintiff opposed the application for restitution with a case that Khasra No.109 was a well partitioned plot separated into four plots before the purchase by the plaintiff and the defendant. The defendant's sale deed described his property, bearing Khasra Nos.109/1 and 109/2. The defendant had also purchased Khasra No.108, adjacent in the east to Khasra Nos.109/1 and 109/2. The plaintiff is the owner in possession of Khasra No.109/3 (the suit property). Khasra No.109/4 is the plot number housing the road. The defendant's suit, bearing No.86 of 1987 was not maintainable. It was also pleaded that the defendant's application under Section 28 of the Land Revenue Act for correction of map had been dismissed by the Additional District Magistrate. 8. The learned Trial Judge dismissed the application under Sections 144 and 151 of the Code broadly on the ground that since there was no reversal or variation of a decree or order of the Court, in consequence of which the constructions were raised on the suit property, but a mere dismissal of the suit as infructuous, the provisions of Section 144 did not come into play. Since the provisions of Section 144 did not apply, the provisions of Section 151, that is to say, the inherent powers could also not be invoked. The Trial Court passed the aforesaid order on the 9th of April, 1990. Since the provisions of Section 144 did not apply, the provisions of Section 151, that is to say, the inherent powers could also not be invoked. The Trial Court passed the aforesaid order on the 9th of April, 1990. The defendant regarding it as an order made in the exercise of powers by the Court under Section 144 of the Code, urged it to be a decree within the meaning of Section 2(2) of the Code and appealed it as such under Section 96 to the District Judge of Moradabad. Before the learned District Judge, Moradabad, the defendant's appeal was numbered as Civil Appeal No.99 of 1990 and assigned to the 13th Additional District Judge. The appeal came up for determination on 08.10.1990, when it was allowed, the order of the Trial Court dated 09.04.1990 set aside and the defendant's application under Sections 144 and 151 of the Code also allowed. The plaintiff was ordered to demolish the boundary wall within 30 days, failing which, the defendant would be entitled to get the boundary wall demolished through process of Court. The defendant, nevertheless, was not granted any damages and left to his remedy of filing a suit for that relief. 9. Aggrieved by the appellate decree, the plaintiff has preferred the present appeal under Section 100 of the Code. 10. This appeal was admitted to hearing on 17.05.1993 on the following substantial questions of law: “1. Whether in view of the finding of the trial Court that the condition contemplated u/s 144 were not attracted and the Appellate Court having agreed with that finding, the Appellate Court was justified in yet passing orders in the application u/s 151 CPC? and, 2. Whether the aforesaid order of the lower appellate Court can be sustained in law? 3. Whether the appeal before the lower appellate Court was maintainable?” 11. Heard Mr. Santosh Kumar Mishra, learned Counsel holding brief of Mr. Shashi Bhushan Rai, learned Counsel for the plaintiff and Mr. T. A. Khan, learned Counsel appearing on behalf of the defendant. 12. The first and the third substantial questions of law are the principal ones that arise and are, therefore, taken up together. Heard Mr. Santosh Kumar Mishra, learned Counsel holding brief of Mr. Shashi Bhushan Rai, learned Counsel for the plaintiff and Mr. T. A. Khan, learned Counsel appearing on behalf of the defendant. 12. The first and the third substantial questions of law are the principal ones that arise and are, therefore, taken up together. The facts and proceedings that are relevant to the substantial questions are that the plaintiff succeeded in Suit No.275 of 1988 in persuading the Court to pass an ex parte order of injunction, restraining the defendant from interfering in the construction of a boundary wall to secure the plaintiff's property till the date fixed i.e. up to 01.12.1988. This order was passed on 27.10.1988. Two other orders were made in aid of this ex parte injunction. One was issuing a commission, requiring the Commissioner to get the boundary wall constructed, securing the suit property and the other was on the third application, granting police aid. It is by virtue of these three orders made by the Trial Judge that the plaintiff succeeded in getting a boundary wall, enclosing the suit property, constructed in two days' time, that is to say, on 22.11.1988 and 23.11.1988. This was accomplished even before the defendant could file objections, seeking to vacate the ex parte injunction. Those objections were filed on 15.12.1988. Before the objections could be heard, the plaintiff applied for withdrawal of the suit, to which the defendant objected. The Court, however, dismissed the suit holding it to be infructuous vide order dated 01.03.1989. 13. No doubt, a grave fraud was played by the plaintiff in securing an ex parte order of interim injunction, which though couched in words of a prohibitive order, yet in substance is mandatory in its nature and effect. We are not concerned per se with the validity of the ex parte order of injunction, but have somewhat to consider its import for the purpose of a decision on the two substantial questions of law that arise. By the terms of the ex parte injunction order, together with the two orders made in aid of it on the same day by the Trial Judge, what happened was that a new state of things was brought into being, different from those that existed on the date of the suit. By the terms of the ex parte injunction order, together with the two orders made in aid of it on the same day by the Trial Judge, what happened was that a new state of things was brought into being, different from those that existed on the date of the suit. It is a well settled principle governing grant of interim injunctions that interim mandatory injunctions of the kind that bring about a new state of things into existence, different from those that existed on the date of the suit, are illegal. An interim mandatory injunction may be issued to restore the state of things that existed on the date of the suit or immediately preceding it, and, far more generously to restore the state of things that are disturbed by the other side, pending suit. However, an interim mandatory injunction, as already said, is never to be granted to bring into existence a completely new state of things, which has to await trial of the suit and the decree passed. 14. Here, the plaintiff, by sharp practice and clever maneuver, through an ex parte interim injunction of a very fleeting nature, managed to cause a new state of things to be brought into existence, to wit, erection of a boundary wall around a suit property, which never existed at any time before the suit was instituted or on the date of suit, virtually dispossessing the defendant and excluding him from it. This assumes serious dimensions given the fact that the defendant does not admit the title and possession of the plaintiff, howsoever weighty the plaintiff's evidence might seem, but says that it is he (the defendant), who is the owner in possession of the suit property. All that had to be determined at a full-fledged trial of the suit, has been cut short through device into a virtual decree being passed by the learned Trial Judge, enabling the plaintiff to achieve his purpose of securing possession of the suit property by an enclosing boundary wall, erected under the Court's orders, supervised by the Court's Commissioner and aided by the Police. As soon as the said objective was accomplished by the plaintiff, he applied to withdraw the suit. The Trial Judge queerly did not allow that application, dismissing the suit as withdrawn and vacating the ad interim injunction. As soon as the said objective was accomplished by the plaintiff, he applied to withdraw the suit. The Trial Judge queerly did not allow that application, dismissing the suit as withdrawn and vacating the ad interim injunction. Of course, the interim injunction with the dismissal of the suit as withdrawn, would automatically dissolve. But, here the Trial Court did something more. The learned Trial Judge noticed the withdrawal application and the defendant's objection, but held that the suit had become infructuous, which in a way is an acknowledgment of the things that the ex parte injunction granted by the learned Judge had exhausted the scope of the suit. The order, therefore, dismissing the suit while certainly not decreeing it, in an insidious manner acknowledges the fact that in effect what has been done by the Trial Judge is to grant final relief to the plaintiff. Notwithstanding the acknowledgment of this fact, with the dismissal of the suit as infructuous, the ex parte injunction granted, would stand dissolved. 15. Now, the question is that to undo a wrong of this kind, would an application to restitute state of things relating to the suit property at the instance of the defendant, be one traceable to the power of the Court under Section 144 of the Code or 151. This question by itself is not very relevant in the sense that by overwhelming authority there is little doubt that the Court had power to undo the wrong by exercise of power to restitute things to their former state, that is to say, the date of the suit, traceable either to Section 144 of the Code or 151. There is wealth of authority to support the Court's jurisdiction to undo the wrong and restitute parties, as far as may be to the former state of things, where on account of a Court's order, that is afterwards dissolved or vacated a new state of things has come about to the prejudice of one of them. This power of the Court is based on the principle expressed in the maxim actus curiae nemen gravabit. After all, an act of Court ought prejudice no one. This power of the Court is based on the principle expressed in the maxim actus curiae nemen gravabit. After all, an act of Court ought prejudice no one. If a new state of things has come about on account of an interim order of the Court, that is afterwards ‘reversed or varied’, the expression employed under Section 144 of the Code, it is the duty of the Court to ensure that the wrong order or one that was held ultimately not sustainable, must not injure the party, against whom it was made. 16. Reference in this regard may be made to Mrs. Kavita Trehan and another v. Balsara Hygiene Products Ltd., (1994) 5 SCC 380 . The question before their Lordships of the Supreme Court arose in the context of a suit where the plaintiffs, who were the clearing and forwarding agents of the defendants, sought to recover their commission, exercising a lien on the stock of goods in their possession, on the strength of an ex parte injunction. The plaintiffs sold goods belonging to the defendant in their possession worth Rs.32.46 lacs, out of which they paid the defendants a sum of Rs.7 lacs under orders of the Court and retained the balance. This order of ex parte interim injunction was passed by a Sub-Judge at Chandigarh, before whom the suit was instituted. This suit was later on transferred by the Supreme Court to the original side of the Delhi High Court. Before the learned Single Judge of the High Court, who tried the suit, two questions arose. The first was if the suit was maintainable in view of Section 69 of the Indian Partnership Act, as the plaintiffs were an unregistered firm on the date of the institution of the suit. The second question was that if the suit was dismissed, are the parties to be placed back in the position that prevailed when the suit was instituted. The first question was answered against the plaintiffs and the suit was dismissed as not maintainable, being barred under Section 69(2) of the Indian Partnership Act. This part of the finding or the decree was not in question before their Lordships of the Supreme Court. On the second question, the learned Single Judge held that the defendands had sold away goods worth Rs.32.40 lacs, relying upon the evidence produced. This part of the finding or the decree was not in question before their Lordships of the Supreme Court. On the second question, the learned Single Judge held that the defendands had sold away goods worth Rs.32.40 lacs, relying upon the evidence produced. Out of the proceeds of Rs.32.40 lacs, Rs.7 lacs were paid to the defendants by the plaintiffs and the question was if the balance of Rs.25.40 lacs, appropriated by the plaintiffs under interim orders towards their claim, could be directed to be paid to the defendant. The further question was if payment could not be directed, what other course was open to secure the defendants' interest. This was apparently a case where the question of restitution arose before the Court as part of the determination to be made during trial. As it appears from the report, the learned Single Judge, while dismissing the suit, directed in the decree to secure the interest of parties, as some other suit was pending at Chandigarh about the rights of parties to the sum of money involved, in the following terms: “8. …. “… plaintiffs are also directed to take out an FDR from a nationalised bank in the sum of Rs 25.40 lakhs in the name of the Registrar of this Court for a period of one year in the first instance which would be subject to further orders of this Court depending upon the outcome of the proceedings pending before the court at Chandigarh and to the result of a claim, if any, made by the competent court by the defendant, if so advised, within the period prescribed by law. The FDR will be deposited in this Court within a period of thirty days. On deposit of the FDR with the Registrar, the security bond dated 18-7-1989 furnished by the plaintiffs to the tune of Rs 16 lakhs will stand discharged.” 17. The order of the Single Judge was upheld by the Division Bench in a Letters Patent Appeal carried by the plaintiffs, who thereafter appealed to their Lordships of the Supreme Court as it is described, assailing the correctness of the view taken by the High Court, directing the plaintiffs to furnish security for the sum of Rs.25.40 lacs. The order of the Single Judge was upheld by the Division Bench in a Letters Patent Appeal carried by the plaintiffs, who thereafter appealed to their Lordships of the Supreme Court as it is described, assailing the correctness of the view taken by the High Court, directing the plaintiffs to furnish security for the sum of Rs.25.40 lacs. It was in deciding the issue, whether orders by way of restitution could be passed only subject to the terms of Section 144 of the Code or the Court had jurisdiction dehors the provisions of Section 144 to grant restitution, it was held by the Supreme Court in Mrs. Kavita Trehan (supra): “21. Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive. (See Gangadhar v. Raghubar Dayal [ AIR 1975 All 102 (FB) : 1974 All LJ 751] and State Govt. of A.P. v. Manickchand Jeevraj & Co. [ AIR 1973 AP 27 : (1972) 2 Andh LT 23] 22. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words : “Where and insofar 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 instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court. 23. We have considered this submission of Shri Grover relying on Sakamma v. Eregowda [(1974) 2 KLJ 357] that the mere fact that the suit for permanent injunction was dismissed resulting in the vacation of the interim order of injunction granted during its pendency, would not entitle the successful defendant to seek restitution under Section 144 CPC. That principle has no application in this case. In the case before us the injunction granted by the learned Senior Sub-Judge, Chandigarh, was not merely negative in terms interdicting interference from the respondent with the custody of the goods by the appellants; it went much further and expressly enabled the appellants to sell the goods. That principle has no application in this case. In the case before us the injunction granted by the learned Senior Sub-Judge, Chandigarh, was not merely negative in terms interdicting interference from the respondent with the custody of the goods by the appellants; it went much further and expressly enabled the appellants to sell the goods. Pursuant to this order, the appellants disturbed the status quo as on the date of the suit and sold away respondent's goods and converted them into money. The High Court while declining the prayer for payment of the sale proceeds to the respondent, however, sought to relegate the parties to the extent practicable, to the same position as obtained on the date of the suit. This the High Court did by directing furnishment of security to the extent of the value of the goods sold away under the cover of the interlocutory order. That an appeal filed against the said interlocutory order was withdrawn, does not, in our opinion, make any difference. Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible. It is unfortunate that the learned Sub-Judge, Ist Class, made an order which, we think, ought not to have been made. If the trial Judge felt that it was in the interest of justice that the goods required to be disposed of, he should have ordered the sale by or under the supervision of a Commissioner of the court ensuring that the sale proceeds were under the court's control. We are constrained to observe that the order of the learned Sub-Judge, Ist Class, failed to have due regard to the need to protect the interests of the opposite party and, to say the least, an improper order was passed. The ex parte order granted by the learned Sub-Judge, Ist Class, was not of mere negative import but virtually enabled and authorised the appellants to sell away respondent's goods of which appellants were mere clearing and forwarding agents. This permission to sell implicit in the form of the order enabled the appellants to purport to convey, respecting the goods, a better title than what appellants themselves had. That such a thing was achieved by an ex parte order, tends to shake litigants' faith in the judicial process. This permission to sell implicit in the form of the order enabled the appellants to purport to convey, respecting the goods, a better title than what appellants themselves had. That such a thing was achieved by an ex parte order, tends to shake litigants' faith in the judicial process. The learned Sub-Judge, Ist Class, ought not to have made an ex parte order which occasioned serious prejudice and loss to the respondent. On the administrative side, the High Court may have to look into the propriety of the conduct of the learned Sub-Judge, Ist Class, in this case. 24. In these facts and circumstances, what the learned Single Judge of the High Court did, which has since been approved by the Division Bench, is both good sense and good law. There are, in our opinion, no legal infirmities in the orders under appeal. The appeals do not call for interference........” 18. Much to the same effect is the holding of our own Court in Rakesh Singhal and another v. Vth Addl. Distt. And Sessions Judge, Bulandshar and others, AIR 1990 All 12 . The facts giving rise to the issue can best be recapitulated in the words of the learned Judge as these figure in the report in Rakesh Singhal (supra), which read: “2. The petitioners filed a Suit No. 40 of 1985 for injunction restraining the defendants from interfering with the construction of the wall. 3. The suit was filed on the ground that by means of Sale Deed dated 27-7-1981, they became the owners of the land shown by letters (Aa, Ba, Sa, Da, Ga, Ra). There was a way of 16 feet in width towards the north of their house and towards the north of that passage defendants' house was situated. Towards the West and South of the disputed passage is a main road connecting the same. This passage belonged to him and he has a right to raise the wall. 4. An application for interim injunction was also moved on 25-10-1985. 5. The learned Civil Judge granted the ex parte interim injunction restraining the defendants-respondents from obstructing the construction of the wall. On the basis of this order, the petitioner completed the constructions. 6. After the notices were issued to the defendants, they filed an objection. It was stated that the plaintiffs obtained the interim order by concealment of material facts. 5. The learned Civil Judge granted the ex parte interim injunction restraining the defendants-respondents from obstructing the construction of the wall. On the basis of this order, the petitioner completed the constructions. 6. After the notices were issued to the defendants, they filed an objection. It was stated that the plaintiffs obtained the interim order by concealment of material facts. The passage is a public path-way of 12 feet in width, on which, the plaintiff has constructed the wall under the protection of injunction order resulting in narrowing down the passage by 6 feet. The map attached to the plaint was also misleading. Neither, the sale deed nor its copy has been filed along with the plaint which would have clarified the claim of the plaintiff. 7. The defendants moved an application (20-C) for removing the constructed wall raised on the basis of injunction order. The Court exercising its power under S. 151, C.P.C. ordered for removal of the same on 13-7-1987. A revision was filed by the petitioner before the learned District Judge against the said order which was dismissed on 17-8-1987. The present petition is directed against this order.” 19. The issue involved in Rakesh Singhal was noticed by the Court in the following words: “9. The only point which has been argued by the learned Counsel for the petitioner was that the Court has no jurisdiction to pass an order of demolition of the said wall which has been completed. His further contention was that passing of the impugned order amounted to adjudication of the case finally at the interim stage without permitting the parties to lead the evidence.” 20. In answering the issue, it was held by this Court in Rakesh Singhal: “10. In order to examine the worth of this argument, few relevant facts ought to be looked into. The plaintiff filed suit on the basis of the sale deed dated 27-7-1981. It is the document of title and the basis of the suit. It has not been filed along with the plaint. It has been deliberately withheld by the plaintiff. The purpose of the suit appears to be to encroach upon the 6 feet wide passage and include the same within the boundary wall. The learned Civil Judge granted the injunction on mere statement in the injunction application and the plaint which were in no way sufficient for granting such an injunction. It has been deliberately withheld by the plaintiff. The purpose of the suit appears to be to encroach upon the 6 feet wide passage and include the same within the boundary wall. The learned Civil Judge granted the injunction on mere statement in the injunction application and the plaint which were in no way sufficient for granting such an injunction. If the plaintiff had filed the sale deed, then probably, the Court would not have passed that order. The petitioner has definitely mislead the Court in obtaining the said order. The learned Civil Judge, should have been more careful in dealing with such matters. 11. In my opinion, the learned Civil Judge had committed a serious mistake in granting such an injunction. In doing so, he has practically decreed the entire suit. It was a fit case, either not to grant injunction order or if the Court felt that there was a necessity, the defendants should have been heard before passing such an order. 12. In the garb of the injunction order, the plaintiff completed the constructions. 13. After raising the wall, he made an application for withdrawal of the suit as the purpose of the suit has been achieved by the injunction order. This application was definitely not a bona fide one. The learned Civil Judge rejected this application. But on revision, the Court allowed the same conditionally on 4-2-1987. That order is not the subject-matter of controversy in the present writ petition. So, this Court is not called upon to adjudicate about the correctness of the same. 14. The defendants' application (20-C) was under S. 151, C.P.C. praying for demolition of the wall. The plaintiff thereafter filed an application (7-C) praying that the injunction application be dismissed as not pressed. This too was not a bona fide application. 15. The record of the case indicates that the petitioner has not come to the Court with clean hands inasmuch as he obtained an ex parte injunction order by misleading the Court. He completed the construction and thereafter, he prayed that the injunction application may be dismissed as not pressed and made an application for withdrawal of the suit. This, he did after the mischief has been done successfully at his instance and the desired construction has been completed. 16. Now, the question is whether the Court is helpless in undoing the wrong, so done. 17. This, he did after the mischief has been done successfully at his instance and the desired construction has been completed. 16. Now, the question is whether the Court is helpless in undoing the wrong, so done. 17. Probably, the petitioner has forgotten that the powers of the Court are unfettered and it has wide jurisdiction to deal with such matters. The learned Civil Judge has allowed the application (20-C) filed by the defendants for demolition of the wall under its inherent powers. On account of the said wall, public at large was also suffering. The order of demolition passed by the learned Civil Judge was perfectly justified. The plaintiff succeeded in constructing the wall by playing fraud on the Court. The jurisdiction of the Court is not confined only to the cases coming within the purview of S. 144, C.P.C. It is inherent in the general jurisdiction of the Court to pass an order of restitution independently of that provision with a view to secure complete justice between the parties. 18. Section 144, C.P.C. deals with the powers of the Court for making of an order of restitution in particular class of cases. The Section is not exhaustive but is only enumarative in those cases, where S. 144, C.P.C. is not attracted as such, the principle can be borrowed and made applicable in dispensing substantial justice under its inherent powers. 20. Thus, in the instant case, even if S. 144 is not applicable, S. 151 is there to undo the wrong done by the Court on being satisfied that the order was passed on being misled by the petitioner.” (emphasis by Court) 21. These authorities firmly establish the principle that a wrong done to a party under an order of the Court and not by the other side’s private act, has to be undone by the Court, placing the parties in the same position, they stood, and restoring the nature of things to the state that these were on the date of institution of the suit. The principle acknowledges the position of the law that the restitutionary power of the Court is not limited to Section 144 of the Code, but inherent. The principle acknowledges the position of the law that the restitutionary power of the Court is not limited to Section 144 of the Code, but inherent. If a case for restitution, otherwise made out, does not fall within the terms of Section 144, the Court's inherent powers to ensure restitution, can and must be utilized to undo the wrong, resulting from a decree or order, that has come to be reversed or varied or undone by the Court in the exercise of any valid jurisdiction. The substantial questions of law, that are involved here, do not precisely doubt this principle that the Court has restitutionary powers outside the terms of Section 144 of the Code. What is of the crux of the matter is if the power exercised is one under Section 151 of the Code, not Section 144, would an appeal lie from the order made on the application, seeking restitution. Section 144 of the Code reads: “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 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).” 22. The foremost to be determined is the position of the law if the order passed by the Trial Judge on the plaintiff's application to withdraw the suit, dismissing it as infructuous, constitutes a variation or reversal of the ex parte injunction passed in the suit in “other proceeding”. Decidedly, there has been no appeal or revision from the order of ex parte injunction passed by the Trial Judge or a separate suit brought by the defendant to set it aside. Therefore, the application, which the plaintiff made to withdraw the suit, which the Court instead of allowing it and granting the withdrawal, decided by ordering the suit to be dismissed as infructuous, would qualify for “other proceeding” within the meaning of sub-Section (1) of Section 144 of the Code, is the first issue. The other is if with the dismissal of the suit as infructuous, the ex parte interim injunction, which decidedly stood dissolved, would qualify as variation or reversal of the order as envisaged under the provision of the Code last mentioned. A variation or reversal of an order by a Court as understood, involves an express order by the Court, setting aside its earlier order or modifying it in some manner. A variation or reversal of an order by a Court as understood, involves an express order by the Court, setting aside its earlier order or modifying it in some manner. For instance, an ex parte decree, that is passed in a suit, if set aside on an application under Order IX Rule 13 of the Code, might fall within the mischief of the term reversal, and the proceedings under Order IX Rule 13 would well qualify as “other proceeding” envisaged under Section 144. That would not be the case with the kind of the order made here. The ex parte injunction granted by the Court no doubt stood dissolved with the dismissal of the suit, but howsoever gross the abuse of process by parties, which the Court permitted, the order of the Court dismissing the suit as infructuous on the supposition that the purpose of the suit had reached fruition, the order would not be one made in “other proceedings”. 23. The order of the Court dated 01.03.1989, dismissing the suit as infructuous on the plaintiff's withdrawal application, in effect confirms the interim order that was passed holding the state of things brought about by the ex parte interim injunction to be valid and good, which did not require any further adjudication. This order was made by the Court though the defendant was objecting to the application for withdrawal. The order passed by the Trial Judge is one lending the process of Court to the grossest abuse. It perpetuates the interest of one party, much to the prejudice of the other, without a trial and by clever maneuver. Harsh as it might seem, notwithstanding the abuse of process that we have noticed, and the maneuver through which the plaintiff secured relief, which could be forthcoming at the conclusion of the trial of the suit, there is no gainsaying that the order passed by the Trial Court does not constitute a reversal or variation of the decree in any kind of “other proceeding” as envisaged under Section 144 (1) of the Code. At the same time, the sharp practice adopted by the plaintiff and the abuse of process of Court indulged in to secure relief without a trial, is required to be undone. At the same time, the sharp practice adopted by the plaintiff and the abuse of process of Court indulged in to secure relief without a trial, is required to be undone. If it could not be undone by the exercise of jurisdiction under Section 144 of the Code, inasmuch as proceedings under Section 144 has its terms and limitations to invoke, the power of the Court under Section 151 to undo any wrong or fraud by a party with the Court's process, would nevertheless be available to the party aggrieved, the defendant in this case. It is perhaps for this reason that the defendant was advised to apply expressly invoking the provisions of Sections 144 and 151 of the Code in seeking to undo the wrong and secure restitution of whatever wrong was brought about by the ex parte injunction. This Court is, therefore, of opinion that the order that was passed by the Trial Court on the defendant's application, seeking restitution, albeit declining it, is one traceable to the power of the Court to undo the wrong by restitution under Section 151 of the Code; not Section 144. 24. The next issue to be determined in order to answer Substantial Questions of Law Nos.1 and 3 is if an order passed under Section 151 of the Code, directing restitution, would be appealable, treating it to be a decree within the meaning of Section 2(2) of the Code. This Court must remark that on this issue, there has been a great divergence of opinion amongst the High Courts in India, spanning across decades. There is one line of authority, which seems to hold that where restitution is sought under Section 151 because the terms of Section 144 of the Code are not strictly fulfilled, but inherent powers invoked to do justice to parties, placing them back in the same position as they were before the vitiated order, dislocating their affairs was passed, would essentially be exercise of the Court's jurisdiction under Section 144 with the aid of Section 151 regarding matters to which Section 144 does not apply stricto sensu. This line of authority virtually holds that an application under Section 144 with the aid of Section 151 of the Code, where the substance of the relief is restitution on account of an incorrect order of the Court, that has come to an end in whatever manner, is an application under Section 144 of the Code extended to cases not expressly covered by the said provision. Some of the authorities in this line of decisions would hold that the power to restitute in whatever manner exercised is traceable to Section 144 of the Code. The purport of all these authorities is that an order for restitution made on an application that does not stricto sensu fall within the terms of Section 144, but one under the inherent powers of the Court, is in substance an application under Section 144. The holding of this line of authority would be that in all such matters, where orders for restitution are passed under Section 151, the order is appealable as a decree by virtue of Section 2(2) of the Code. The foremost to be referred in this line of authority is a Bench decision of the Calcutta High Court in Gnanada Sundari v. Chandra Kumar De, AIR 1927 Cal 285 , where it was held: “There does not seem to be any direct authority in this Court dealing with the actual point but the learned vakil who appears for the Respondents says that in many cases an appeal has been entertained against an order passed under sec. 151 and he refers us in support of this contention to a decision of the Judicial Committee, Jai Barham v. Kedar Nath Marwari, A.I.R. 1922 P.C. 269=2 Pat. 10. But I do not think that case really covers the point which we have to decide. But I am inclined to think that an appeal does lie. It certainly seems a curious position that if the Court deals with the matter under sec. 144, C.P.C., an appeal lies whereas if the Court under sec. 151 exercises the same jurisdiction which sec. 144 gives him, but exercises that jurisdiction under sec. 151 because sec. 144 is not strictly applicable, no appeal lies; and the view I take is that if as here the order is made under the provisions of sec. 151, but in fact in exercise by analogy of the jurisdiction under sec. 151 exercises the same jurisdiction which sec. 144 gives him, but exercises that jurisdiction under sec. 151 because sec. 144 is not strictly applicable, no appeal lies; and the view I take is that if as here the order is made under the provisions of sec. 151, but in fact in exercise by analogy of the jurisdiction under sec. 144 an appeal does lie. The first point therefore accordingly fails.” 25. To the same effect is the holding of the Madras High Court in (Gudimetla) Ramireddi v. (Gudimetla) Satyam and others, AIR 1936 Mad 636, where it is held: “The plaintiff has filed both an appeal and a revision petition with the same grounds to cover any possible objection that a Second Appeal does not lie. The main contention urged before me is that no appeal lay from the order of the District Munsif in so far as it relates to matters which do not fall strictly under S. 144, though the application was framed as coming under that section. The argument is that S. 151, under which the learned Subordinate Judge finds that the order should have been passed, is not an appealable section and that the order of the lower Court rejecting the application for the enforcement of the security bonds and subsequent mesne profits must be regarded not as an order under S. 144 but as an order under S. 151 and therefore it must be treated as one against which no appeal lay. The learned Subordinate Judge met this contention by a reference to the case in Raman Nambiar v. K. Pulasseri Thekkee, 1934 Mad 484, wherein it was held that the right of appeal is determined not by what the Court should have done, but by what it purported to do and that if the Court purported to act under a provision of law which carries a right of appeal against the order, that right of appeal will exist even though the order should have been under another provision against which there is no appeal. It might of course be argued that while the Court has power to set right a wrong which has been done by the use of a wrong provision of law if that provision of law itself contemplates an appeal, it need not necessarily have a right to direct the doing of a positive act under a non-appealable provision merely because the Court has refused to do that act, purporting to do so under a provision which gives a right of appeal. But I do not think it necessary to go into such subtleties. The matter seems to me to be covered by the provisions of S. 47, Civil Procedure Code. Granted that an order under the inherent powers of the Court is not per se appealable, if that order is in fact an order passed on an application made by one of the parties as against another party and relating to the execution, discharge or satisfaction of the decree it falls under S. 47 and for that reason it is appealable. S. 47 provides only for the procedure and the forum whereby a decision is to be reached. It does not give the powers by virtue of which the Court decides; these powers have to be sought in other provisions of the Code. They may be derived from S. 144; they may be derived from S. 151. If an order for restitution made under S. 144 is appealable because it also falls under S. 47, similarly an order under S. 151 for something analogous to restitution made as between the parties would also fall under S. 47 and be subject to an appeal. A similar reasoning is found in decisions of this Court reported in Akshia Pillai v. Govindarajulu Chettiar, 1924 Mad 778= 84 IC 975 and Govinda Padayachi v. Velu Murugayya Chettiar, 1933 Mad 399= 143 IC 454 and it has been held in the case of Somasundaram v. Chokkalingam, 1917 Mad 185= 38 IC 806, that S. 47 Civil Procedure Code, covers all cases of restitution. I must therefore hold that an appeal lay to the Subordinate Judge from the order of the District Munsif declining to order restitution or to order reliefs analogous to restitution. The next question is whether on the merits the order of the Subordinate Judge is contrary to law. I must therefore hold that an appeal lay to the Subordinate Judge from the order of the District Munsif declining to order restitution or to order reliefs analogous to restitution. The next question is whether on the merits the order of the Subordinate Judge is contrary to law. It is argued that the defendants have not been shown to be in possession at the time when the suit was instituted. There is a finding of one Court which has not been expressly reversed, that the plaintiff was in possession and that therefore no proceedings by way of restitution or by way of analogy to restitution can lie. Now the facts are, as I understand them, that shortly before the suit was filed both the parties were threatening to resort to violence to support their claim to possession of this property.” 26. Likewise, in Mt. Champabai v. Shree Dauatram Sharma and others, AIR 1938 Nag 326, it was held: “5. The power of the executing Court to order restitution is thus clear, but in view of the fact that the order confirming the sale in the present case does not fall within the definition of a decree given in Section 2(2) of the CPC and indeed is expressly excluded from the definition for the reason that it is appealable as an order under O. 43, R. 1(j), the restitution is not covered by the exact wording of S. 144, which uses the words “where and in so far as a decree is varied or reversed.” Assuming that the word ‘decree’ in Section 144 of the CPC should not be construed as including an appealable order of this kind (though a contrary view is indicated in 20 NLR 93 [Ramjl v. Ziblaji, (1924) 11 AIR Nag 258 : 80 IC 49 : 20 NLR 93.] at p. 99), the restitution is given by the Court as if S. 144 applied, this fiction being imported in the exercise of its inherent power and in performance of its inherent duty. 6. Is such an order appealable or not? It may readily be conceded that because an order is passed under the inherent powers it does not necessarily become appealable: 24 NLR 55 [Narayan Das Bhagwanji & Co. v. Kalyanji, Mawaji & Co., (1928) 15 AIR Nag 173 : 107 IC 525 : 24 NLR 55.] and 31 NLR Sup 72. 6. Is such an order appealable or not? It may readily be conceded that because an order is passed under the inherent powers it does not necessarily become appealable: 24 NLR 55 [Narayan Das Bhagwanji & Co. v. Kalyanji, Mawaji & Co., (1928) 15 AIR Nag 173 : 107 IC 525 : 24 NLR 55.] and 31 NLR Sup 72. [Tatyarao v. Shrikrishna, (1936) 23 AIR Nag 8 : 160 IC 202 : 31 NLR Sup 72]. If however the inherent powers are used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this Case S. 144. In such a case even justice demanded that one side should be given a remedy, restitution, as if S. 144 applied so the other side should, as a matter of justice, be allowed the right to appeal that would have existed, had S. 144 really applied instead of its being applied by means of a fiction. Some such reason seems to be involved in those cases where orders for restitution passed under the inherent powers have been held appealable. This is not a case where one is purporting to act under S. 144. It is a case where under the powers conferred by S. 151 the Court is giving a relief as if S. 144 applied though it does not apply. It is clear that two views can be taken upon the subject. We prefer the above view which is consonant With the conclusions arrived at by the Calcutta High Court in AIR 1914 Cal 692 [ Amirannessa v. Karimannessa, (1914) 1 AIR Cal 692 : 22 IC 839 : 18 CWN 1299.] and AIR 1927 Cal 285 . [ Gnanda Sundari v. Chandra Kumar, (1927) 14 AIR Cal 285 : 100 IC 735 : 31CWN 290.]” (emphasis by Court) 27. There is further endorsement of the same principle in Sheonandanlal Gurudayal Shrivastava v. Gopal Babaji Nafde and others, AIR 1943 Nag 172: 1942 SCC OnLine MP 40, where it has been observed: “6. [ Gnanda Sundari v. Chandra Kumar, (1927) 14 AIR Cal 285 : 100 IC 735 : 31CWN 290.]” (emphasis by Court) 27. There is further endorsement of the same principle in Sheonandanlal Gurudayal Shrivastava v. Gopal Babaji Nafde and others, AIR 1943 Nag 172: 1942 SCC OnLine MP 40, where it has been observed: “6. Similarly, it could also be held that it was by reason of the order of the Court that custodian took possession of the property for the benefit of the decree-holder. It was only later on 27th February 1941 that it was decided that the property should not be held for the benefit of the decree-holder as it belonged not to the judgment-debtors but to their mother. It was therefore that the property had to be restored by the order of the Court to the mother of the judgment-debtors. The custodian by reason of the variation in the Court's order restored the property back, and by his applications before the trial Court claimed to be put back to the position in which he was before he was placed in possession of the property; he claimed rent as ordered by the Court from 20th April 1940 to the date on which he had to return the property; and he also claimed the costs of bringing the property to Court at the instance of the decree-holder and of taking them back again when the decree-holder declined to accept it. These costs were incurred by him till the variation of the order placing him in possession of the property. He was thus entitled to be restituted to the position in which he was both under law and under the orders of the Court. Section 144 of the CPC, by analogy applies to the facts of the present case. It has been held in several cases as pointed out by Mulla at p. 453 of his Code of Civil Procedure, 11th Edn., that the power of a Court to grant restitution is not confined to the cases covered by the provisions of this section. It extends also to cases which do not come strictly within this section. The reason is that a Court has an inherent power under S. 151 irrespective of this section to order restitution. 7. It was held in I.L.R. (1939) Nag. 850 [(’38) 25 A.I.R. 1938 Nag. 326 : 179 I.C. 677 : I.L.R. (1939) Nag. It extends also to cases which do not come strictly within this section. The reason is that a Court has an inherent power under S. 151 irrespective of this section to order restitution. 7. It was held in I.L.R. (1939) Nag. 850 [(’38) 25 A.I.R. 1938 Nag. 326 : 179 I.C. 677 : I.L.R. (1939) Nag. 350, Mt. Champabai v. Shree Daulatram Sharma.] that an appeal lies from the order of restitution made by an executing Court under its inherent powers. It was observed that ordinarily no appeal lies from orders passed under S. 151. 8. If, however, the inherent powers are used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this case S. 144. In such a case even as justice demanded that one side should be given a remedy, restitution, as if S. 144 applied; so the other side should, as a matter of justice, be allowed the right to appeal that would have existed had S. 144 really applied instead of its being applied by means of a fiction. 9. This is a case in which I am applying S. 144, not because in terms it applies to the facts of the case, but by fiction. Section 144 has to be read with s. 151, and though this order is one passed under s. 151 it should be treated as one having been passed under S. 151 read with S. 144 and thus appealable as held in I.L.R. (1939) Nag. 350. [(’38) 25 A.I.R. 1938 Nag. 326 : 179 I.C. 677 : I.L.R. (1939) Nag. 350, Mt. Champabai v. Shree Daulatram Sharma.] The lower appellate Court thought that the orders of the trial Court were orders which could be treated as orders in execution in which the supratdar should be deemed to be the decree-holder, and that the persons against whom he claimed execution were the judgment, debtors; and it is in that view that the lower appellate Court applied Section 47 of the CPC, and held that an appeal lay against the orders of the trial Court. No doubt, the orders of the trial Court were orders in execution; but the execution that was started was by the decree-holder against his own judgment-debtors. It is in relation to that execution that a custodian was appointed for the property attached. Any orders relating to him could also be regarded as orders in execution though strictly speaking S. 47 does not apply. The result is whether we regard the orders of the trial Court as falling under S. 145 or S. 144 or S. 47 all of them would have to be read with S. 151; and as orders passed under any of these sections are appealable the mere fact that any of the sections are not strictly applicable to the facts of the case does not negative the right of appeal. As already stated by me, the Court had an inherent jurisdiction to restore the custodian to status quo and to pass an order enabling him to get his costs from the decree-holder in the same proceedings.” 28. The last, that was cited before me in this line of authority was Gopal Laskar v. Harihar Mukherjee and others, AIR (35) 1948 Cal 37: 1946 SCC OnLine Cal 137, where it has been remarked by Lodge, J.: “2. It has been argued in the first place on behalf of the present Appellant that the application was an application not under sec. 144, C.P.C., but under sec. 151, C.P.C., and therefore no appeal lay from the order of the Munsif and accordingly the order of the learned Subordinate Judge in the Court of Appeal below was without jurisdiction. 3. Reliance was placed for this view on the decision in the case of Tarak Ch. Roy v. Panchanan Banerjee [41 C.W.N. 157 (1936).] . In that case the question before the Court concerned the amount of court-fees payable on a memorandum of appeal filed against an order passed in a proceeding for restitution under sec. 144, C.P.C. Mukherjea, J., referred to a contention placed before him that the appeal before him might be treated as an appeal against an order under sec. 151 and not as an appeal against an order under sec. 144, C.P.C., Mukherjea, J., in dealing with the argument observed: “Now an appeal is undoubtedly a creature of statute, and no appeal could possibly lie from an order under section 151, C.P. Code, taken by itself.” 4. 151 and not as an appeal against an order under sec. 144, C.P.C., Mukherjea, J., in dealing with the argument observed: “Now an appeal is undoubtedly a creature of statute, and no appeal could possibly lie from an order under section 151, C.P. Code, taken by itself.” 4. If the matter were res Integra I should be inclined to hold that no appeal lay from an order passed on an application under sec. 151, C.P.C., but in my opinion I am bound by the decisions of this Court. The decisions of this Court, which are binding on me, are all to the effect that an appeal does lie under the circumstances such as those with which I am now concerned. In the case of Maharaja Sasikanta Acharjee v. Jalil Baksha Munshi [35 C.W.N. 105 (1930).], it was held that when in a case to which sec. 144, C.P.C., does not apply, the Court acting under sec. 151, exercises the same jurisdiction which sec. 144 gives it, the order of restitution so made is appealable. The learned Judges who tried that case observed that they followed earlier decisions of this Court and that no authority of this Court was shown to them in which a different view had been taken. They referred particularly to the case of Gnanada Sundari Mojumdar v. Chandra Kumar De [31 C.W.N. 290 (1926).] . In these two cases the facts were exactly similar to the facts of the present case and these two cases are authority for the view that an appeal would lie. In the case of Tarak Ch. Roy v. Panchanan Banerjee [41 C.W.N. 157 (1936).] , Mukherjea, J., held that the case before him was not the case of an appeal from an order under sec. 151 and consequently his remarks as to the maintainability of an appeal from an order under sec. 151 were really obiter dicta. In any case, Mukher-jea, J., did not dissent from the decision in the case of Maharaja Sasikanta Acharjee v. Jalil Baksha Munshi [35 C.W.N. 105 (1930).] , but, held that that decision could be justified on the second of the two reasons given by the Judges who gave the decision. There is therefore no authority of this Court for the view that the case of Maharaja Sasikanta Acharjee v. Jalil Baksha Munshi [35 C.W.N. 105 (1930).] was wrongly decided. There is therefore no authority of this Court for the view that the case of Maharaja Sasikanta Acharjee v. Jalil Baksha Munshi [35 C.W.N. 105 (1930).] was wrongly decided. I am, therefore, bound by that decision and I must hold that the Court of Appeal below was competent to entertain the appeal and to pass the order which it did pass.” 29. The other line of decisions clearly hold that from an order for restitution passed by the Court in the exercise of its inherent jurisdiction under Section 151 of the Code, as distinguished from Section 144, the conditions whereof must be strictly made out if that were to be invoked, an appeal would not lie. An order under Section 151, granting restitution, would be revisable, but not appealable. This reasoning proceeds on the foot of the fundamental principle that an appeal is a creature of statute and there is no inherent right of appeal. An order under Section 144 of the Code has to be regarded a decree within the meaning of Section 2(2) of the Code and, therefore, appealable. An order under Section 151, for the same reason, is not open to appeal. These authorities do not subscribe to the view that the restitutionary power of the Court is always traceable to Section 144, which if not strictly applicable by its own terms, is extended with the aid of Section 151, but always remaining traceable to Section 144. These authorities, this Court would think, recognize the power of the Court to restitute in an entirely different way. The Court is regarded as possessed of an inherent power to restitute and give relief to a party, who has been wronged by a decree or order, that is later on reversed or set aside and, therefore, held bad. The restitution is to be made by placing the party in the same position that he would have been, but for the wrong orders subsequently undone in some competent proceedings. The power to restitute under Section 144 is regarded as a specific facet of the general power to restitute, vested in the Court inherently. The power under Section 144 is exercisable subject to the terms of the statute strictly obtaining in a particular case. The power to restitute under Section 144 is regarded as a specific facet of the general power to restitute, vested in the Court inherently. The power under Section 144 is exercisable subject to the terms of the statute strictly obtaining in a particular case. If in a particular situation a case does not fall under Section 144, and yet a party has been wronged by an order of the Court, the power to undo the wrong and grant restitution, is still recognized inherently to exist in the Court, but exercisable under Section 151 of the Code; not 144. 30. To the genre of authorities, subscribing to the latter view is Mangilal Kajodimal v. Shankar Shravan Nikam, 1955 SCC OnLine Bom 295 : (1956) 58 Bom LR 107. There was no dispute on facts or in law in Mangilal Kajodimal (supra) that the order passed by the Court of first instance, directing restitution, had been exercised under Section 151 of the Code and not 144. The District Judge dismissed the appeal as not competent. In Mangilal Kajodimal, it was held: “It is not disputed before me that the order of restitution under revision has been passed, not under s. 144, but under s. 151 of the Code. It is well established that the power of the Court to grant relief by way of restitution is not confined to the provisions of s. 144 of the Code. A civil Court has inherent jurisdiction to grant restitution even in cases that do not fall within the letter of the provisions of s. 144. In Jai Berham v. Kedar Nath Marwari [(1922) L.R. 49 I.A. 351, S.C.25 Bom. L.R. 643.] their Lordships of the Privy Council have emphasized the fact that it is the duty of the Court under s. 144 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, and they have added that it is not as if this duty or jurisdiction arises merely under the provisions of s. 144. “…It is inherent in the general jurisdiction of the Court”, said their Lordships, “to act rightly and fairly according to the circumstances towards all parties involved.” (p. 355). Thus the trial Court was justified in entertaining the present application for restitution under s. 151 of the Code. “…It is inherent in the general jurisdiction of the Court”, said their Lordships, “to act rightly and fairly according to the circumstances towards all parties involved.” (p. 355). Thus the trial Court was justified in entertaining the present application for restitution under s. 151 of the Code. Now, an order passed under s. 144 of the Code is appealable. It is appealable because it is artificially included in the definition of the word “decree” contained in s. 2, sub-s. (2), of the Code. The question which falls for decision in the present revisional application is: Can it be said that an order of restitution which has been passed under s. 151, and which in substance resembles an order that can be passed under s. 144, can be regarded as a decree within the meaning of s. 2, sub-s. (2) of the Code? Section 2, sub-s. (2), which defines a decree, provides that “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit; and it goes onto add that the decree may be either preliminary or final. Then the definition adds that the word “decree” shall be deemed to include the rejection of a plaint and the determination of any question within s. 47 org. 144. Since, an order passed under s. 144 is a decree within the meaning of s. 2, sub-s. ( 2), an appeal lies against every such order by virtue of the provisions contained in s. 96 of the Code. The argument is that the effect of the order of restitution passed under s. 151 is indistinguishable from the effect of the order of restitution passed under s. 144, the basis for making both kinds of orders of restitution is the same and the object intended to be achieved by passing the said orders is also the same, and so, like the order for restitution passed under s. 144, the order for restitution passed under s. 151 should be held to amount to a decree within the meaning of s. 2, sub-s. (2), and an appeal against such an order should be held to be competent under s. 96 of the Code. In dealing with the question as to whether an appeal lies against any order of adjudication, it is necessary to remember that there is no inherent right of appeal. The right to appeal is the creature of a statute, and unless the right to prefer an appeal against any specific order of adjudication is expressly provided by the statute it would not be possible to recognise or carve out any such right on grounds of justice, equity or fairness. As the definition of the word “decree” indicates, but for the inclusion of restitution orders passed under s. 144 within the definition of the word “decree,” no appeal would have been competent even against the said orders of restitution. It is clear that an order for restitution even under s. 144 is not passed in regard to any of the matters in controversy in the suit. It is after the suit is finally determined that the provisions of s. 144 can be, and are, invoked, so that within the definition of the word “decree” an order of restitution passed under s. 144 would not have been included. That is why in defining the word “decree” Legislature has included specifically orders made under s. 144. It seems to me that it would be difficult to accede to the argument that an appeal should be regarded as competent against orders of restitution passed under s. 151 on the ground that orders of restitution of this kind are in substance similar to the orders of restitution passed under s. 144. The argument based on the similarity of the orders may be logical. It may also be true that, if the Court exercises its inherent jurisdiction in favour of a party claiming restitution even though the claim does not fall within the four corners of s. 144, it would be just and fair that a party aggrieved by an order of restitution passed under s. 151 should have an opportunity to challenge that order by preferring an appeal against that order. But considerations of logic and of equity and justice cannot, in my opinion, have an effective voice in deciding the question as to whether an appeal lies against any particular order, once it is remembered that the right to prefer an appeal is the creation of a statute. But considerations of logic and of equity and justice cannot, in my opinion, have an effective voice in deciding the question as to whether an appeal lies against any particular order, once it is remembered that the right to prefer an appeal is the creation of a statute. All arguments of logic and fairplay may, at best, indicate that Legislature may provide for an appeal even against all restitution orders passed under s. 151. But what Legislature may do cannot be attempted to be done by Courts on the ground that the claims of equity and fairness would be met by allowing an appeal against such orders of restitution. An order for restitution passed under s. 151 has not been included within the definition of the word “decree” under s. 2, sub-s. (2), and so it must be held that such an order is not a decree within the meaning of the said section and as such no appeal can lie against such an order under s. 96 of the Code. The Code allows appeals against orders. But even in respect of these appeals there are two provisions that determine the question as to whether a given order is appealable or not. Section 104 of the Code deals with orders from which appeals lie and the rules under O. XLIII supplement the provisions contained in s. 104. It is clear that the rules under O. XLIII as well as the provisions of s. 104 do not justify the argument that an order for restitution passed under s. 151 is appealable as an order. Incidentally it may be pointed out that prima facie the exercise of inherent jurisdiction by the trial Court is not intended to be subject to supervision by the appellate Court. As the provisions contained in ss. 151, 152 and 153 suggest, powers which can be generally described as inherent powers are expected to be exercised by Courts sparingly and with due circumspection, and normally orders made by trial Courts in the exercise of these inherent powers are not subject to appeal. As the provisions contained in ss. 151, 152 and 153 suggest, powers which can be generally described as inherent powers are expected to be exercised by Courts sparingly and with due circumspection, and normally orders made by trial Courts in the exercise of these inherent powers are not subject to appeal. But apart from this consideration, unless an order for restitution passed under s. 151 amounts either to a decree or appears to be one of the orders against which an appeal has been preferred, it would not be possible to hold, on considerations of equity, justice or fairness, that an appeal can be entertained against such an order.” 31. Likewise, to the same effect is the Bench decision of the late Chief Court of Oudh in Brij Mohan Singh v. Rameshar Singh, AIR 1939 Oudh 273. The facts in Brij Mohan Singh (supra) can best be recapitulated the way these are described in the report: “The facts are that in 1927 a simple money decree was obtained by Mahabir Singh (father of respondent No. 2) against Jageshar Singh (father of the present appellant and Mahabali Singh respondent No. 3) and Tawakkal Singh respondent No. 4, for a sum of Rs. 273-12-0. In execution of his decree Mahabir Singh put certain properties of the judgment-debtors to sale and in 1928 the property was purchased in auction sale by Rameshar Singh, respondent No. 1, for a sum of Rs. 2,950. On the 17th April, 1929, Rameshar Singh obtained formal possession of the property purchased by him through the Court. It is not disputed that as a matter of fact he was in actual possession of the property from before on foot of certain mortgages held by him. Out of the sale consideration the decretal amount was paid to Mahabir Singh, Rs. 661-4-0 were set off against decrees held by Rameshar Singh and the balance of Rs. 2,015 was ordered to be paid over to the judgment-debtors. Subsequently on the 2nd May, 1930, the sale of the property was set aside by the Commissioner. Thereupon on the 11th July, 1930, Rameshar Singh, the auction purchaser, filed a regular suit for a declaration that the Commissioner's order setting aside the sale was void. This suit was decreed by the learned Munsif who tried it but eventually it was dismissed by this Court in 1932. Thereupon on the 11th July, 1930, Rameshar Singh, the auction purchaser, filed a regular suit for a declaration that the Commissioner's order setting aside the sale was void. This suit was decreed by the learned Munsif who tried it but eventually it was dismissed by this Court in 1932. After that on the 13th September, 1934, the judgment-debtors applied to the Munsif for restoration of possession of the property to them. This application purported to be under Section 151 of the Code of Civil Procedure and was treated as such by the learned Munsif. He allowed the application on condition that the judgment debtors applicants pay back the sum of Rs. 2,0???5 withdrawn by them to the auction purchaser. It was against the condition attached to the order that the judgment-debtors appealed to the Civil Judge. He was of opinion however that as the order was passed under Section 151 C.P.C. it was not appealable and dismissed the appeal. One of the judgment-debtors now comes to this Court in second appeal. A preliminary objection has been taken by the learned Counsel for Rameshar Singh, auction-purchaser, who contends that no appeal lies in the present case. As the objection itself raises the question whether or not the order of dismissal of the appeal passed by the learned Civil Judge was correct we have heard the learned Counsel for parties on the merits.” 32. In Brij Mohan Singh, it was held: “The learned Counsel for the appellant contends that the order of the learned Munsif against which his client appealed to the District Judge was in reality an order under Section 144 C.P.C., and as such there was no bar to an appeal being brought against it. We cannot however accept this contention. Section 144 contemplates a case in which the decree, or it may be, the order, of a trial Court has been put in execution and the decree or order has afterwards bean varied or reversed in appeal In the present case the decree, on the reversal of which the learned Counsel for the appellant relies, was no doubt passed by the learned Munsif but it was not in execution of that decree that the sale purchased by the respondent No. 1 had taken place. Therefore no restitution was due to the judgment-debtors on the reversal of that decree by this Court. Therefore no restitution was due to the judgment-debtors on the reversal of that decree by this Court. The sale had been held and the auction purchaser put into possession of the property in pursuance of quite a different decree which, for aught we know, was not varied or reversed in appeal. It is clear that the restitution sought under Section 144 must be in respect of the decree which has been reversed or varied. This view is supported by Sham Parshad v. Ram Chand [(1914) 20 I.C. 203.]. In fact, it seems very doubtful if the learned Munsif had jurisdiction to pass an order of restitution in the present case. However this is not a ground taken by either party before us. We are therefore clear that Section 144 C.P.C., has no application to the case. The learned Counsel for the appellant has relied on the following cases Gnanada Sundari Mojumdar v. Chandra Kumar De [(1927) 31 Cal. W.N. 290.], Maharaja Sasikanta Acharjee v. Jalil Baksha Munshi [(1931) 35 Cal. W.N. 105.], Ramireddi v. Satyam [A.I.R. 1936 Mad. 636.] and Mam Chand v. Alt Mohammed [A.I.R. 1934 Lah. 1023.]. The last two cases are not much in point. In the two Calcutta cases no doubt it was held that when an order which does not strictly come under Section 144 has been passed under Section 151, it is appealable. With due respect we are unable to follow the decision in these two cases. The right of appeal is a creature of the statute and unless there are express provisions of law relating to the maintainability of an appeal, it would not in our opinion be correct to say that because an appeal is allowed by statute in certain cases it must be allowed by way of analogy in other similar cases. It is not disputed that an order under Section 151 is not appealable and we have already noted that not only was the application for restitution made by the judgment-debtors under that section but that it was treated as such by the learned Munsif who dealt with it.” 33. There is a Full Bench decision of our Court of which note must be made in the context of the question involved. That decision is Jogendra Nath Singh v. Hira Sahu and another, AIR 1948 All 252 . There is a Full Bench decision of our Court of which note must be made in the context of the question involved. That decision is Jogendra Nath Singh v. Hira Sahu and another, AIR 1948 All 252 . The question in that case was if the words ‘varied or reversed’ employed in Section 144 would be attracted in a case where the decree passed in a suit against the party applying for restitution had been set aside in a separate suit brought by the parties for a declaration that the property included in the mortgage was joint family property, that the mortgage was without necessity, rendering the joint family not bound by the decree or liable for payment of the mortgage debt. Pending the suit, the final decree that had been obtained by the decree-holder was put to execution and the property sold, which the decree-holder himself purchased. The suit brought by the son of mortgagor on behalf of the joint family was dismissed by the Court of first instance, but decreed in appeal by this Court. It was in that context that the question arose if the decree passed in the latter suit would qualify for a ‘variation or reversal’ of the decree within the meaning of Section 144. It was held that it would. 34. On the terms of Section 144 as it stands after its amendment by Act No.104 of 1976, the variation or reversal contemplated under Section 144 is provided to be one in an appeal, revision or other proceeding and provision is further made for Section 144 to apply to a case where the decree passed is set aside or modified in any suit instituted for the purpose. The principle, therefore, laid down by the Full Bench, giving an expanded meaning to the words ‘variation or reversal, may not be of much consequence to determine if a decree passed in another suit, setting aside the decree, executed, the effect of which is sought to be undone in terms of the decree passed in the subsequent suit, would entitle the decree-holder in the subsequent suit to the invocation of powers under Section 144 of the Code. The statute, as it now stands, clearly authorizes it. The statute, as it now stands, clearly authorizes it. The Court has noticed the Full Bench for the purpose of determining what would be the scope of proceedings under Section 144 of the Code and what orders would qualify as orders passed under Section 144 and what orders, though granting restitution, have to be held traceable to the Court's inherent powers under Section 151. 35. The question fell for consideration again before a Division Bench of this Court in The Allahabad Theatres Ltd., Allahabad v. Ram Sajiwan Misra, AIR (36) 1949 All 730, where the learned Judges, though concurring in the conclusions, held divergently on the point if an order of restitution under Section 151 of the Code would be appealable. Whereas Harish Chandra, J. held that no appeal would lie against an order of restitution made under Section 151, Sapru, J. held it would. 36. The question was considered by a Full Bench of the Madras High Court in Sayyed Usman Saheb and others v. Vegisena Sivaramaraju and others, AIR (37) 1950 Mad 463: 1949 SCC Online Mad 357, where the learned Judges wrote concurrent, but separate opinions. It was held by Satyanarayan Rao, J.: “22. The question therefore must be considered on the footing that the order of restitution passed by the District Munsif Court is one which falls under S. 151, Civil P.C. Decisions have recognised inherent powers of Courts to order restitution in cases not falling under S. 144, Civil P.C. See Rodger v. Comptoir D'Escompte de Paris, (1871) LR 3 PC 465 at p. 475 : (40 LJ PC 1.) Palaniappa v. Ramanathan, 57 Mad 849 : (AIR (21) 1934 Mad 320) and Ratnaji v. Ramkrishnayya, AIR (24) 1937 Mad 95 : (167 IC 67) a right of appeal should be conferred by a statute or by some authority equivalent to a statute and does not exist as an inherent right. This proposition is well established by the decisions of the highest tribunal which followed the principle recognised under decisions in England vide, Minakshi v. Subramania, 11 Mad 426 : (14 IA 160 PC) and Rangoon Botatoung Co. Ltd., v. The Collector of Rangoon, 40 Cal 21 : (39 IA 197 PC). Under the Code, right of appeal is provided by S. 96 from every decree passed by any Court exercising original jurisdiction. Sections 104 and O. 43, Civil P.C. provide appeals from orders. Ltd., v. The Collector of Rangoon, 40 Cal 21 : (39 IA 197 PC). Under the Code, right of appeal is provided by S. 96 from every decree passed by any Court exercising original jurisdiction. Sections 104 and O. 43, Civil P.C. provide appeals from orders. Sections 2 (2) defines a "decree" as including an order rejecting a plaint, orders under S. 47, Civil P.C. and orders under S. 144, Civil P.C. The first part of the definition is confined to a conclusive determination by a Court of the rights of the parties with regard to all or any of the matters in controversy in suit. It follows from this definition that a decree may be a conclusive determination of the rights of parties with regard to matters in controversy in suit; it may be an order rejecting a plaint or an order falling under S. 47 or S. 144, Civil P.C. It excludes from its purview appealable orders and also an order of dismissal for default. In order therefore to confer a right of appeal, an adjudication must be either a "decree" in the sense defined by the Code or an "order" which falls under S. 104 or O. 43, Civil P.C. As an order for refund or restitution under S. 151, Civil P.C. is not an order within S. 144 and is not otherwise included either in the definition of the decree or the appealable orders enumerated in S. 104 and O. 43, there is no right of appeal against such an order. An application not being an order in a suit it would not be a decree; a suit should be instituted by a plaint and not by an application. So, even if the order determines conclusively the matters in controversy between the parties, as it is not an order passed in a suit, it won't be a decree within the meaning of the first pact of the definition of decree : see Hansraj Gupta v. Official Liquidators of Dehara Dun etc. Co., 54 All 1067 : (AIR (20) 1933 PC 63) and Rajagopala Chettiar v. H.R.B. Board, Madras, 57 Mad 271 : (AIR (21) 1934 Mad 103 FB). On a plain reading of the provisions of the Code relating to the appeals therefore, the order now in dispute is not appealable. 25. Co., 54 All 1067 : (AIR (20) 1933 PC 63) and Rajagopala Chettiar v. H.R.B. Board, Madras, 57 Mad 271 : (AIR (21) 1934 Mad 103 FB). On a plain reading of the provisions of the Code relating to the appeals therefore, the order now in dispute is not appealable. 25. None of these decisions have examined the question on principle and they cannot be treated as authorities on the question which we are now called upon to decide. As there is no specific appeal provided under the Code against orders of restitution and refund under S. 151 of the Code and as an order under that section does not amount to a decree, I am of opinion that the appeal to the Sub Court was incompetent. In this view it is unnecessary for me to discuss the merits of the appeal. The result is that the orders of Govindarajachari, J., and the Subordinate Judge must be set aside and the Letters Patent Appeal and the Civil Miscellaneous Second Appeal must be allowed with costs throughout. C.R.P. No. 822 of 1945 which was preferred by the legal representatives of Akkubhotlu was however dismissed by Govindarajachari, J., as he was of opinion that the appeal to the lower appellate Court was competent. As I have now held that the appeal was incompetent, in the ends of justice I think that that civil revision petition must be restored and must be directed to be posted for disposal in the usual course before a single Judge.” 37. The opinion of Vishwanatha Sastri, J. is expressed in paragraph No.30 of the report, thus: “30. There is, however, a direct decision in Balireddi v. Nagireddi, 1941-1 MLJ 407 : (AIR (28) 1941 Mad 564), where King, J. held that if a party is ordered to make restitution under S. 151, Civil P.C., he must have a right of appeal, because the proceedings under S. 151 are analogous to those under S. 144 and an order under the latter provision would be appeal, able. He followed an earlier decision of this Court in Ayyasami Iyer v. Sivakki Ammal, 56 Mad 909 : (AIR (20) 1933 Mad 780) where it was held that when a Court acting, not under S. 145, Civil P.C., but under its inherent powers, called upon a surety to carry out the terms of his bond, the right of appeal which the surety would have had under S. 146 if it applied, is not lost to him under S. 151. I am unable to agree with the reasoning of King, J. The order against the surety though it did not fall under S. 145, Civil P.C., was treated as an order passed in the suit and as one determining the rights of parties. An, order for restitution is not an order in the suit an as to amount to a decree under S. 2(2), Civil P.C., Rajagopala Chettiar v. H.R.E. Board, 57 Mad 271 : (AIR (21) 1934 Mad 103 FB). It is one thing to say that a Court has inherent power to order restitution or refund of money acting ex debito justifies even in cases not falling within S. 144, Civil P.C. But it is quite a different thing to say that every such order passed in the exercise of the Court's inherent power is appealable. Section 151, Civil P.C., does not confer any new powers but recognises and preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The Code of Civil Procedure, though elaborate, is not exhaustive; and has not made anticipatory provision for every possible cul-de-sac. Section 151 is a recognition of this fact and of the inherent power of the Court, subject to the express provisions of the Civil Procedure Code to act ex debito-justities and to do that real and substantial justice which it should be the aim of all Courts to render. Apart from the provisions of S. 114, Civil P.C., the power to order restitution or refund of money paid out through an error or mistake of the Court or through fraud or deception practiced upon it, has been recognised to be inherent in Courts, it being their primary duty to take care that their acts do no injury to any of the suitors. A right of appeal to a higher Court from an order of an inferior Court is not like a right to institute a suit of a civil nature which a person enjoys apart from any statutory provision. The right of appeal is a substantive right and not a matter of mere procedure : Colonial Sugar Refining Co. v. Irwin 1905 AC 369 : (74 LJ PC 77), Delhi Cloth and General Mills Co. v. Collector of Income-tax, 9 Lah 284 : (AIR (14) 1927 PC 242). A right of appeal is not a natural or inherent right and is not to be assumed or presumed but must be expressly given by statute or some authority equivalent to a statute. The cases on the point and the relevant provisions of the Code of Civil Procedure have been quoted in the order of reference and need not now be repeated. Courts exercising inherent powers may, and often do, act on the anology of statutory provisions which, though not applicable proprio vigore, are nearest in point to the circumstances before them. A Court has, however no inherent power to entertain an appeal from an order of an inferior Court; nor can it extend by a analogy, statutory provisions giving a right of appeal in particular cases to analogous cases not falling within those provisions. The statutory provision providing for appeals must be considered to be exhaustive of all the matters which are considered to be fit for appeal by the legislature or rule-making body. There is no provision either in the body of the Code or in O. 43, R. 1 making an order for refund or restitution passed by a Court in the exercise of its inherent powers appealable. If the order for restitution satisfies the requirements of S. 47, Civil P.C., it might be appealable as if it were a, decree. It may be open to the High Court in exercise of its rule-making powers to add to O. 43, R. 1 a clause giving a right of appeal against an order for restitution made in the exercise of the inherent power of a Court in which event there would be a right of first appeal but not a right of second appeal against such an order. In view of our decision against the appealability of orders for restitution passed in the exercise of the inherent powers of a Court, it is essential that Courts professing to exercise such powers and make orders for restitution, should exercise such powers only in very clear cases where the rights of parties do not admit of serious doubt or dispute. In other cases, it is desirable to refer the parties to a separate suit so as to give them a right of appeal. In the present case, the order for restitution having been made under S. 151, Civil P.C. and not being one falling within S. 47, Civil P.C., Was not appealable. It follows, therefore, that the lower appellate Court had no jurisdiction to entertain this appeal and that the present Letters' Patent appeal should be allowed.” 38. Raghava Rao, J. concurred with these opinions, of course, adding remarks of his own. 39. This Court must notice the holding of K.K. Mathew, J. (as his Lordship then was of the Kerala High Court) in Subramonia Iyer v. Damodaran Potti, 1963 SCC OnLine Ker 49, where noticing the conflict of opinion amongst the various High Courts, whether an order for restitution made under Section 151, not strictly within the terms of Section 144 of the Code, would be appealable, held the appeal in that case to the Lower Appellate Court not competent for reason that the order of the Court of first instance in that case, was not traceable to Section 47 of the Code, but 151 alone. The learned Judge held that from the order of the Lower Appellate Court not even a second appeal would lie and treated the second appeal as a revision. The remarks in Subramonia Iyer (supra), that are in point, read: “2. The 4th defendant's application before the court was put in under Section 144 C.P.C. for restitution, but the trial court found that section was not attracted to the facts of the case and treated the application as one under Section 151 and dealt with the question on the basis that the petition was one under Section 151. 3. Therefore counsel for the appellant urged that the lower appellate court had no jurisdiction to entertain the appeal as no appeal lay from an order passed under Section 151 of the Civil Procedure Code. 3. Therefore counsel for the appellant urged that the lower appellate court had no jurisdiction to entertain the appeal as no appeal lay from an order passed under Section 151 of the Civil Procedure Code. The decision of the High Courts in India are not uniform on the question whether an appeal would lie from an order passed under Section 151 for restitution, when the facts would not attract the application of Section 144 of the C.P.C. In Usman Saheb v. Sivaramaraju (A.I.R. 1950 Mad. 463) a full bench of the Madras High Court has held that an order for restitution passed under Section 151 of the C.P.C. was not appealable. Satianarayana Rao J. said that as there is no specific appeal provided under the Code against an order of restitution and refund, passed under Section 151 of the Code, and as an order under that section does not amount to a decree, the appeal is incompetent. The same view was taken by Viswanatha Sastri J. He observed that an order for restitution under Section 151 of the Code of Civil Procedure and not falling within Section 47 of the C.P.C. is not appealable. The same view was taken in Ramanandan v. Jagannath (A.I.R. 1958 Patna 547), Brij Mohan Singh v. Rameshan Singh (A.I.R. 1939 Oudh 273) and Ganesh Datta v. Model Town Society (A.I.R. 1939 Lahore 508). 4. A different view seems to have been taken in A.I.R. 1931 Calcutta 779 and A.I.R. 1948 Calcutta 37. The reasoning in A.I.R. 1950 Madras 463 if I may say so with respect, appeals to me as correct. I therefore follow that decision and hold that the appeal to the lower appellate court was incompetent and therefore the lower appellate court had no jurisdiction to set aside the order passed by the court of first instance. As the question in this case concerns a matter arising after the delivery of the property in execution of the decree, I do not think that it relates to execution, discharge or satisfaction of the decree so as to fall within the ambit of Section 47 of the C.P.C. Hence the question of the appealability has to be decided on the basis that the application was one under section 151 alone. Though no second appeal would lie in this case I treat this appeal as a revision, as the lower appellate court has exercised a jurisdiction not vested in it by law.........” 40. If the order be passed by the Lower Appellate Court, deciding the appeal, which was not competent for reason that the order of first instance was traceable to exercise of power under Section 151 of the Code and not 144, a second appeal, in our opinion, would still be competent. In this regard, reference may be made to a Bench decision of the Patna High Court in Ram Ratan Prasad and others v. Banarsi Lal and others, AIR 1930 Patna 280 : 1929 SCC OnLine Pat 62, where it has been remarked: “It is also contended by the learned Advocate for the respondents that no second appeal will lie to this Court for two reasons: In the first place, because no appeal originally lay to the District Judge and secondly, because the order of the District Judge being an order of remand, no appeal will lie from such an order. It has, however, been held in a series of cases that if the District Judge entertains an appeal which does not lie to his Court a second appeal lies against his decision—see, for example, Sagar Mull v. Hira Maharaj [(1925) 7 Pat. L.T. 264.] . It is clear that if it is held that the order of the District Judge was entirely without jurisdiction, then, whatever the nature of that order may be, it will be competent for this Court to vacate that order........” 41. Incidentally in Ram Ratan Prasad (supra) too, it has been opined on the main point under consideration that against an order for restitution passed under Section 151 of the Code, not traceable to the powers of the Court under Section 144, no appeal would lie. In this regard, the remarks that are material read: “The learned Advocate for the respondent, however, contends that even though a case may not come within the letter of section 144, a Court may order restitution and the order of restitution thus passed would be deemed to be an order under section 144 of the Civil Procedure Code and the learned Advocate relies upon two well-known cases. It appears, however, that all that was said in one of these cases—Kamlanath Jha v. Mobit Jha [(1923) 5 Pat. It appears, however, that all that was said in one of these cases—Kamlanath Jha v. Mobit Jha [(1923) 5 Pat. L.T. 553.] —was that the power of a Court, to order restitution was by no means confined to the terms of section 144 of the Civil Procedure Code and that it was the inherent right of a Court to do what was right and proper under the circumstances which, have happened. In the other case again Jai Berhma v. Kedar Nath Marwari [(1922) I.L.R. 2 Pat. 10.] their Lordships of the Judicial Committee expressed themselves as follows— “It is the duty of the Court, under section 144 of the Civil Procedure Code, 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. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved”. Now, I do not find anything in either of these two decisions to warrant the proposition of law that even though an order for restitution may be passed by a Court in cases where there has been no reversal or variation of the decree, it must necessarily be deemed to be an order passed under section 144. On the other hand, in both these decisions the inherent powers of the Court have been referred to side by side with section 144 of the Civil Procedure Code. If then it is held, as I am inclined to hold, that this was not a case to which the provisions of section 144 would apply and that, if any restitution was to be ordered or mesne profits were to be awarded, it should have been done under section 151 of the Civil Procedure Code, it is clear that no appeal would lie from the order passed by the learned Munsif. This result will follow from an examination of section 104 of the Civil Procedure Code and Order XLIII, rule 1 of the Civil Procedure Code and if any authority is needed for that proposition it is to be found it the case which I have already referred to, Sukhdeo Das v. Rita Singh [(1917) 2 Pat. This result will follow from an examination of section 104 of the Civil Procedure Code and Order XLIII, rule 1 of the Civil Procedure Code and if any authority is needed for that proposition it is to be found it the case which I have already referred to, Sukhdeo Das v. Rita Singh [(1917) 2 Pat. L.J. 361.] , where it was clearly held that the order of the executing Court was not a decree and, therefore, no second appeal lay.” 42. The question was exhaustively examined by the Bombay High Court in Gulam Mohamed Allarakha v. Akbarbhai Sheikh Abdeallibhai and another, 1981 SCC OnLine Bom 245 : 1982 Mah LJ 757, where S.K. Desai, J., after survey of divergent authorities in point, opined: “20. I have set out earlier the approach of Viswanatha Sastri J. I prefer the view taken by the Madras, Punjab, Patna and Lahore High Courts to the contrary view taken by the High Courts of Calcutta and Nagpur. Merely because an application for restitution is somewhat similar to applications for restitution which would be covered by section 144 would not be sufficient ground for enabling a party aggrieved by an order on such application to file an appeal merely because an appeal can be filed from orders made under section 144 of the Civil Procedure Code. The right of appeal cannot be deemed conferred by analogy. It cannot be extended because it is equitable to do so. In case interests of justice so require, the aggrieved party, if the error is fundamental or if the decision is perverse, can move the higher Court in its revisional powers or the High Court in its power of superintendence conferred by Article 227 of the Constitution of India. In the result, I uphold the preliminary objection. In my view, the appeal is not competent and will accordingly have to be dismissed...........” 43. In the result, I uphold the preliminary objection. In my view, the appeal is not competent and will accordingly have to be dismissed...........” 43. So far as the proposition of law goes, this Court is inclined to agree with the views expressed by the High Court of Bombay in Mangilal Kajodimal and Gulam Mohamed Allarakha (supra), the Kerala High Court in Subramonia Iyer and the Chief Court of Oudh in Brij Mohan Singh, that if the order of restitution passed by the Court of first instance, which would include a fortiori a refusal of the application to restitute by the first Court is traceable to the exercise of inherent jurisdiction of the Court under Section 151 and not the jurisdiction under Section 144 on the terms of the statute, an appeal would not be competent. A revision under Section 115 of the Code from an order of the Court of first instance, granting or refusing restitution under Section 151 alone, would be competent. The reason is not far to seek by first principles that have approval of all the High Courts mentioned for this line of reasoning, to wit, the High Court of Bombay in Mangilal Kajodimal and Gulam Mohamed Allarakha (supra), the Kerala High Court in Subramonia Iyer and the Chief Court of Oudh in Brij Mohan Singh; and, the reason is that an appeal is a creature of statute. Section 2(2) of the Code makes an order on an application under Section 144 of the Code appealable by legal fiction imbuing that order with the character of a decree. It is well acknowledged that the Court's power of restitution is far wider than what the terms of Section 144 envisage. Therefore, if in a case restitution is ordered by the Court to undo a wrong in the exercise of its wider and inherent jurisdiction to restitute and put parties back in the same position that they were before the wrong order, subsequently rescinded in some manner, not falling strictly within the terms of Section 144 of the Code, an appeal would not be competent. A revision would nevertheless lie. 44. Now, it is to be examined here if the order passed by the Court of first instance qualifies for one under Section 144 of the Code or is it the outcome of an exercise by the Court of its wider jurisdiction under Section 151. A revision would nevertheless lie. 44. Now, it is to be examined here if the order passed by the Court of first instance qualifies for one under Section 144 of the Code or is it the outcome of an exercise by the Court of its wider jurisdiction under Section 151. Though the Court of first instance has declined the application to restitute precisely on the ground that the terms of Section 144 are not attracted, the Lower Appellate Court has granted that application, holding in substance that if not under Section 144, the power is exercisable under Section 151. 45. No doubt, the Lower Appellate Court has opined in one part of its reasoning that Section 144 of the Code is applicable. In the concluding remarks, it has been said by invocation of the principle laid down by this Court in Rakesh Singhal that the appellant is entitled to restitution under Sections 144 and 151 of the Code. It seems that the Lower Appellate Court, though right about its conclusions, mostly on facts was in doubt if the defendant had to be granted relief under Section 144 or 151 of the Code. The earlier, remark definitively opining that Section 144 was attracted, is ameliorated and put under some haze by the Lower Appellate Court in its concluding remarks on the issue. It is in fact this finding in the concluding part that has led this Court to formulate the first substantial question of law. It would, therefore, be necessary for this Court to see if indeed what the Lower Appellate Court has exercised on the defendant's application, was a power under Section 144 of the Code or Section 151. 46. No doubt, this is a hard case, where there is patent fraud and abuse of process of Court by the plaintiff to secure possession of the suit property through an interlocutory order of the most drastic consequence, virtually decreeing the suit and then withdrawing it. But, the terms of the final order made, do not attract the provisions of Section 144 of the Code. Certainly, these do attract the provisions of Section 151. But, the terms of the final order made, do not attract the provisions of Section 144 of the Code. Certainly, these do attract the provisions of Section 151. It need not be gainsaid that the Court of first instance while passing the order on the withdrawal application has not simply permitted withdrawal, vacating the interim injunction, by dint of which the plaintiff secured virtually a decree that he would otherwise at the hearing, but also got it executed. The order that the Court of first instance made, is prima facie one that perfected the plaintiff's fraud and abuse of process. The Court instead of simply ordering the suit to stand dismissed as withdrawn, which we think was the only order that the Court could have made on an application for an unconditional withdrawal of suit under Order XXIII Rule 1 of the Code, chose instead, to say that the suit had become infructuous and dismissed it as such by saying that he acknowledged the changed state of things regarding the suit property under the interim injunction granted and then confirmed that state of things by saying that the suit had become infructuous. It was virtually said by the Court of first instance that since the plaintiff had got relief in terms of the ex parte injunction, there was no necessity to pass any further order in the suit. This course was certainly not open to the Court of first instance and was nothing less than perfection of the plaintiff's fraud and lending the process of Court to utter abuse by the plaintiff. But, this order, in our considered opinion, does not constitute in any manner a ‘reversal or variation’ of the order for reasons that we have already given. It rather amounted to an affirmation of the ex parte injunction passed by the Court of first instance. 47. No doubt, upon the dismissal of the suit on an application to withdraw and the defendant demanding restitution, it was the duty of the Court of first instance to have undone the effects of the ex parte injunction, if needed by suitably modifying the order passed on the withdrawal application. Instead, the learned Trial Judge held that no application under Section 144 of the Code was maintainable. Instead, the learned Trial Judge held that no application under Section 144 of the Code was maintainable. He did not venture to invoke his powers under Section 151 to undo the fraud and abuse of process of Court that the plaintiff had recklessly indulged in. The Lower Appellate Court did that, but we think that since the jurisdiction that could have been exercised was one under Section 151 of the Code, the Lower Appellate Court ought have treated the appeal as a revision and decided the matter. It could not have decided an appeal from the order of the Trial Court. An appeal from the appellate decree is a creature of statute and if there is jurisdiction wanting, matters of equity cannot be permitted to enter consideration to endorse or assume jurisdiction, where none exists. That is precisely the case here. The opinion of this Court may seem harsh, but then as the maxim goes: dura lex, sed lex or the law is harsh, but it is the law. 48. This Court would, therefore, answer the first substantial question of law in the affirmative in terms that even if the Courts below held that the conditions contemplated under Section 144 of the Code were not made out, the Appellate Court could pass orders on the application under Section 151 of the Code, directing restitution, but subject to the qualification spelt out in answer to Substantial Question of Law No.2. 49. Substantial Question of Law No.3 is answered in the negative, holding that the appeal before the Lower Appellate Court was not maintainable. 50. Substantial Question of Law No.2 is answered in the negative, holding that while the order of the Appellate Court cannot be sustained in law, but it has to be held that the said Court would have jurisdiction to entertain and decide a revision from the order passed by the Court of first instance and decide the application under Section 151 of the Code. 51. In the result, this appeal succeeds and allowed in part. 51. In the result, this appeal succeeds and allowed in part. The judgment and decree passed by the Lower Appellate Court is set aside with a remit of the matter to the Lower Appellate Court, ordering it in the first instance to permit the defendant-appellant before it to convert the appeal into a revision, and, upon conversion being effected, decide the revision on merits, after hearing parties in accordance with law and the guidance in this judgment, within three months of receipt of a certified copy of this judgment and order. 52. Let an order be drawn up, accordingly. 53. Let the lower courts' records be sent down at once.