- (1.) THIS revision is by the plaintiff in the suit O.S.No. 696 of 1974 on the file of the District Munsif of Thanjavur. The respondents herein are the defendents in the suit. The suit of the plaintiff was for declaration of title and for permanent injunction. That suit was decreed by the first Court as prayed for. On appeal by the defendants A.S.42 of 1978 on the file of the Subordinate Judge, Thanjavur, the title of the plaintiff in respect of a portion alone was upheld and injunction thereon granted and the suit in respect of the remaining portion was dismissed. The plaintiff preferred S.A. 2028 of 1978 to this Court, and there was a cross-objection by the defendants. The second appeal by the plaintiff was dismissed by this Court, and the cross objection by the defendants was allowed, dismissing the suit as a whole. Defendants 5 and 6 with the consent of the other defendants took out E.P. 195 of 1985 for delivery of possession, demolishing the construction made thereon by the plaintiff. The plaintiff contested this move of the defendants stating that her suit for declaration of title and possession having been dismissed, the defendants could not ask for such independent reliefs. However, the Court below thought reliefs to the defendants could be accorded under Sec.144, C.P.C hereinafter referred to as the Code, and allowed the application. THIS revision is directed against the orders of the Court below.
(2.) BEFORE me, Mr.U.Thyagarajan, learned counsel for the petitioner-plaintiff would submit that it is nobody 'case, that plaintiff obtained possession and put up construction pursuant to or under the cover of any decree or order of Court so that the defendants on reversal of such order or decree, could seek the aid of Sec.144 of the Code, and claim restitution. If I assess and take note of the principle under Sec.144 of the Code, in the background of the facts of the present case, I have to sustain the submission of the learned counsel for the plaintiff. The suit of the plaintiff was one for declaration of title and for permaneent injunction. The finding rendered by the Court while dismissing the suit for the plaintiff is that the plaintiff was not in possession on the date of the suit. It is not and it could not be the case of the defendants that the plaintiff got possession pursuant to and under the cover of the decree passed by the first Court or the decree passed by the lower appellate Court. Sec.144 of the Code, as a whole, reads as follows: ' 144(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 he 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 order, 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, order). Explanation: For the purpose of sub-Sec(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 purposes of obtaining any restitution or other relief which would be obtained by the application under sub-Sec.(1) ' Only in a case where any benefit has been obtained by a party pursuant to or in consequence of or under the cover or colour of a decree or order of a Court, and such a decree or order is varied, reversed or set aside or modified by the higher Court, there could be a restitution within the meaning of Sec.144 of the Code so as to place the parties in the position which they would have occupied but for such decree or order or such part thereof. It is not the case of the defendants that the plaintiff obtained possession pursuant to order or in consequence of or under the colour of order of a Court of the first Court or the decree of the lower appellate Court. The defendants would claim that the plaintiff got into possession unlawfully. In such a contingency, there is no scope for invoking the aid of Sec.144 of the Code, and the bar of sub-Sec.(2) of Sec.144 of the Code has no application at all and the proper remedy is only by way of an independent suit. In PERIASAMI THEVAN v. KARUTHIAH THEVAN, (1917)6 L.W. 631, a Bench of this Court, consisting of Old Field and Bakewell JJ. dealt with a case where the plaintiffs in a suit, who were not really in possession at all, instituted a suit for a declaration that they were in possession of the suit property and for an injunction restraining the defendants from interfering with their possession and the first Court gave them a decree as prayed for whereupon the plaintiffs, by private means, aid of the police and the moral support of the judgment of the first Court, but not by execution, obtained possession from the defendants and the decree as well as the findings were subsequently reversed on appeal. The Bench held that the application by the defendants for restitution under Sec.144 of the Code would not lie and the remedy was only by way of a suit. In GOVINDA v. MUNISWAMI, 45 L.W. 398: A.I.R. 1937 Mad. 315, Venkataramana Rao, J. (as he then was) dealing with a case where the plaintiff who sued for assertion of their rights as against the defendants, taking advantage of the order of injunction granted to them, unlawfully took possession of certain properties to which they were not entitled, and when the defendants sought restitution, held that the proper remedy of the defendants, who are aggrieved by the action of the plaintiffs was by suit and not by way of restitution inasmuch as the defendants did not lose their possession because of any action taken by plaintiffs under the decree, but by an unlawful act independent of the decree. The learned Judge chose to follow the ratio of the Bench in PERIASAMI THEVAN v. KARUTHIAH THEVAN, (1917)6 L.W. 631. The principles remaining that they are certainly the defendants were not in order to seek restitution in the manner as they did, and the Court below erred in granting the reliefs to the defendants under the cover of Sec.144 of the Code. The result is, this revision has got to be allowed, and accordingly the same is allowed. I make no order as to costs.;