Section 144 CPC – Powers of Restitution
Judgment dated 14.5.2024 Civil Appeal No.5026 of 2023 of Bhikchand Dhondiram Mutha (Deceased through L.Rs. Vs. Shamabai Dhanraj Gugale (Deceased) through L.Rs.
In 1969, Dhanraj – husband of the plaintiff Shamabai advanced loan of Rs.8000 to the original defendant – appellant herein / judgment debtor .
On 15.2.1982, the Special Civil Suit No.255 of 1972 filed by the plaintiff for recovery of loan was partly decreed. The appellant filed the appeal, and the defendant filed the cross-objections.
In the meanwhile, the plaintiff – decree holder filed execution petition and the properties were sold in auction for Rs.34,000/- on 9.8.1985. The first property in auction was subsequently sold by the plaintiff in favour of respondent no.3 for Rs.3.9 lakhs vide sale-deed dated 17.7.2009.
The first appeal of the plaintiff was dismissed, whereas, cross-objection of the defendant was allowed to the extent of interest and cost. As a result, the total original decretal amount of Rs.27,694/- was reduced to Rs.17,120/-.
As a result, the judgment debtor moved an application for restitution under Section 144 CPC on the ground that since the original decree having been varied substantially, the execution sale deserves to be set aside and reversed by way of restitution. This is how the matter reached upto the Supreme Court.
It is the duty of the Court under Section 144 of the Code of Civil Procedure 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.
One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and “act of the court” means all the courts from lowest to the highest court.
Section 144 CPC statutorily recognises a pre-existing rule of justice, equity and fair play. That is why it is often held that even away from section 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties.
