- (1.) This regular second appeal is filed against the judgment of the appellate court dated 7.7.2010 which allowed the appeal of the present respondent no.1 and who was the applicant in the application under Section 144 read with Section 151 CPC filed in the trial court. The appellate court allowed the appeal of the respondent herein and who was the appellant in the appellate court. Trial court by its judgment dated 20.11.2002 had dismissed the application, and against which judgment the respondent herein had filed the appeal, and in which appeal the respondent-applicant was successful. Hence the present appeal by the non-applicant in the trial court and the respondent in the appellate court.
(2.) The facts of the case are that the respondent herein as a plaintiff filed a suit against the appellant herein for permanent and mandatory injunction questioning the charge of fraudulent abstraction of energy from the electricity connection. In this suit, the respondent-plaintiff had filed an interim application for restoration of electricity supply and which application was disposed of with the direction that respondent-plaintiff will pay the amount claimed by the appellant herein (defendant in the suit) by means of installments. On the amount being paid by the plaintiff in the suit and the respondent herein, electricity connection was restored. The suit filed by the respondent-plaintiff was however dismissed by the judgment dated 6.9.1999. Whereas issue no.2 was held in favour of the respondent-plaintiff that there was no valid inspection report dated 24.4.1996, the suit was however dismissed in view of the finding in issue no.4 that the respondent-plaintiff was not a registered consumer. Therefore the final position which emerges was that the suit of the respondent-plaintiff stood dismissed. None of the parties challenged the judgment dated 6.9.1999, much less the respondent-plaintiff, who is the applicant in the application under Sections 144 and 151 CPC. I am doubtful as to whether the appellant herein and who was the defendant in the trial court could have challenged the decree because the suit against the appellant-defendant was dismissed, and such a defendant cannot under Section 96 CPC file an appeal only with respect to one issue against the defendant, although the suit of the plaintiff was dismissed vide Deva Ram Vs. Ishwar Chand, 1995 6 SCC 733.
(3.) Respondent-plaintiff after the dismissal of the suit filed the subject application claiming that the applicant-plaintiff is entitled to restitution on account of the fact that the issue no.2 was held in favour of respondent-plaintiff and that since the respondent-plaintiff had paid amount under interim orders of the court in installments for restoration of the electricity connection, the respondent-plaintiff should be restituted by direction for refund of the amount paid by the respondent-plaintiff to the appellant-defendant.;