- (1.) This writ petition has been filed against the impugned order dated 12.5.1995.
(2.) I have heard Sri R.N. Singh, learned Counsel for the Petitioner and Sri Sankatha Rai, learned Counsel for the Respondent. It appears that the Respondent Nos. 3 and 4 filed a suit for specific performance against the Petitioners which was decreed on 19.3.1973 vide Annexure-1 to the writ petition. Against this Judgment, the Petitioners have filed an appeal in this Court which was allowed on 15.4.1991 (Annexure-2 to the writ petition) and the decree of the trial court was set aside. It may be mentioned that after the decree of the trial court on 19.3.1979, the Respondent Nos. 3 and 4 had obtained possession in pursuance of the said decree. Thereafter that decree has been set aside by the judgment of this Court against which the Respondents filed a Special Leave Petition in the Supreme Court. The Supreme Court has passed three orders which are annexed to the counter-affidavit as Annexures C.A. 4, C.A. 5 and C.A. 6. By the order dated 27.11.1991, the Supreme Court has maintained status quo between the parties. Thereafter by the order dated 13.2.1992, the earlier order was modified and the stay which was continued was only regarding the decree for mesne profit and the Appellant was entitled to withdraw the amount deposited in the Bank. Thus, It appears that by the order dated 13.2.1992, the Supreme Court vacated the stay order regarding possession which had been granted by the first interim order dated 11.7.1991. Thereafter a third order was passed by the Supreme Court on 15.3.1995 by which the court was directed to pass necessary orders on the application for restoration, After a careful perusal of these three orders of the Supreme Court, 1 am of the opinion that the Supreme Court has vacated the first Interim order dated 11.7.1991 as far as possession is concerned. The third order only directed that the application for restoration be considered by the court.
(3.) It is settled law that restoration is obligatory once a decree is set aside. It is the duty of the court to grant restitution in such cases. In the case of Mrs. Kauita Trehan v. Balsam Hygiene Product Ltd., 1994 4 JT 519, the Supreme Court had examined the earlier decisions of the House of Lords and Privy Council and also of the Supreme Court regarding the duty of the court to grant restitution. Thus, in the case of Jai Berham and Ors. v. Kedar Nath Marwari and Ors., 1922 AIR(PC) 269 Privy Council observed: It is the duty of court Under Section 144, 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.;