R.Bhattacharya, J. - (1.) The plaintiffs who are the appellants before us filed a suit for eviction of the respondent-defendant under the provisions of the West Bengal Premises Tenancy Act, 1956. At first the suit was decreed ex parte. Subsequently, the defendant Ram 'Nagina Pandey filed an application under Order 9, Rule 13 of the C. P. C. and the same was ultimately allowed. As a result the ex parte decree was set aside and the ejectment suit was restored to file. That order for restoration of the suit was maintained by this Court on a revisional application filed by the plaintiffs against that decision. Before the ex parte decree was set aside, the plaintiffs had obtained possession of the suit premises by evicting the defendant in execution of the said ex parte decree. After the ex parte decree had been set aside, the defendant respondent filed an application in the trial court under Section 144 of the C. P. C, 1908 for getting back the possession of the suit property. The application was contested by the plaintiffs, but ultimately the trial court save the relief to the defendant as prayed for. Against that order for restoration of 'possession to the defendant, an appeal was taken to this Court and the said appeal was disposed of by our learned brother Chittatosh Mookerjee, J. on 23-4-1974. The order for restoration of possession was maintained. Against that decision of Mookerjee, J., the present Letters Patent Appeal has been preferred by the plaintiffs.
(2.) Mr. Banerjee, the learned Advocate appearing on behalf of the appellants has canvassed that the learned trial court could not have passed any order for restoration of possession under Section 144 of the C. P. C. It has been submitted that as the ex parte decree was set aside by the same court which passed it, it is not a case of reversal of the decree as contemplated in Section 144 of the C. P. C. It has been contended that unless an order or a decree is reversed or varied in appeal by the higher forum, no order could be passed under Section 144 of the C. P. C. Mr. Roy Chowdhury, the learned Advocate for the respondent has, however, opposed the contentions.
(3.) For consideration of the arguments of Mr. Banerjee Section 144 of the C. P. C. is quoted below :-- "(1) Where and in so far as a decree or an order is varied or reversed, the Court of first instance 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 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 or reversed; and, for this purpose, the Court may make any orders, including order for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).";