- (1.) Whether the court on an application for restitution can pass an order in terms of compromise, alleged to have been filed by the parties before the decision or the proceedings for restitution have to be decided independent of the compromise application, is the short question for determination in the present petition filed by the plaintiffs, the petitioners who have obtained an ex parte order on 19-9-85 and got actual possession in respect of the accommodation on 23-4-86 in a small cause court suit for arrears of rent and damages and mesne profits, filed by them against respondent Nos. 2 and 3, and the suit was restored on 26-10-87 on payment of Rs. 300/- as cost. Thereafter it became necessary on the application of respondent Nos. 2 and 3 to deliver back the possession to them, which was obtained by the petitioners in execution of the decree dated 19-9-85. Under these circumstances, the application for execution moved by respondent Nos. 2 and 3 under S.144 (one forty four) of the Code of Civil Procedure, 1908, for short the Code) came up for consideration before respondent No. 1.
(2.) It was urged by the learned Counsel for the petitioners that the parties during the pendency of the application had filed a compromise application, a certified copy of which has been filed as Annexure 1 to the petition, and as the compromise application was filed before respondent No. 1, and the proceedings for restitution were pending that the provisions of O.23, R.3 of the Code were so comprehensive that it applies to any application or proceedings, Hence the restitution application could not have been disposed of by the impugned order without taking into account the validity and legality of the compromise filed by the parties.
(3.) Learned counsel for respondent Nos. 2 and 3 urged that there was no such compromise and the compromise was fictitious and did not bear the signature of respondent Nos. 2 and 3. Consequently it would not be obligatory for respondent No. 1 to have taken into account that alleged compromise. It was further urged that the nature of proceedings under S.144 do not warrant its disposal on the basis of compromise. The learned counsel for the parties agreed that the petition may be decided on merits. 3A. Having heard the learned counsel for the parties broadly speaking there is only one question to be decided as to whether the proceedings for restoration under S.144 of the Code could be disposed of on the basis of the compromise. The next point, however emanating from the first, is as to whether the nature of proceedings under S.144 of the Code is such that the same could be disposed of on the basis of a compromise alleged to have been filed under O.23, R.3 of the Code. Broadly speaking, I am of the opinion that the restitution proceedings are execution proceedings with a slight difference that in execution proceedings the decree in favour of the plaintiff is put in execution, whereas in restitution proceedings it is not the decree, rather a variance or reversal or any benefit which have been obtained by the successful party and the same has not been maintained in appeal or revision or in some other similar proceedings, including the revision application which is sought to be given effect to. In the present case, the person who has succeeded, may make an application that the benefits given to other party may be set at naught as the order has been reversed. May be that some sort of codification or reversal or variance of a decree or order might have been occasioned in any proceeding. In fact, provisions of S.144 of the Code are based on principles of two equitable doctrines. The first is based on two Latin Maxims, i.e. 'ACTUS CURIAE NEMINEM GRAVABIT' (which connotes that an act of the Court shall prejudice no man); and the next is 'ACTUS LEGIS NEMINI EST DAMNOSUS' (which connotes that an act of law shall prejudice no man). The next is that nobody should suffer an injury on account of that order of the Court which has been varied or reversed later on in appeal or revision or in some other proceedings. The leading English case of Rodger v. Comptoir D. Escompta De Paris, (1871) 19 WR (Eng.) 449, was the basis for these two doctrines and the relevant observations are as follows : "One of the first and highest duties of the Court is to take care that the act of the Court does no injury to the suitors and when the expression 'act of the court' is used, it does not mean merely the act of primary court or of an intermediate court of appeal, but the 'act of the court' as a whole from the lowest Court which entertains the jurisdiction over the matter up to highest Court shall finally dispose of the case.";