RESTITUTION: SECTION 144
Every person has a right to claim damage against the harm which s/he have suffered through the act of another person. The court has the duty to give decision after hearing both parties and examination of evidence. When court gave decision in favor of one party and other party appealed against the decision and the appellant court reverses the decision, in this case, the appellant has the right to claim the restitution of all those benefits which the other party has received under a decree subsequently held to be wrong.
Section 144 encoded the “Doctrine of Restitution” in Code of Civil Procedure, 1908.
Meaning of Doctrine of Restitution
The doctrine of restitution is based upon the well-known maxim “actus curiae neminem gravabit”, i.e. the act of court shall harm no one.
The expression of “restitution” means “an act of restoring a thing to its proper power”. It provides putting a party back in possession of land, tenement of property, who had been unlawfully dispossessed, deprived or disseised of it.
The doctrine of restitution has been enunciated, equating with an obligation on the party to the suit, which has received the benefit under a decree, which has been set aside to make restitution to the other party for what is lost and such an obligation arises automatically.
In other words, the principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and’ necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. (Binayak Swain v. Ramesh Chandra, AIR 1966 SC 948)
A wrong order should not be perpetuated by keeping it alive and respecting it. And, besides Section 144 also, the court has inherent power to order restitution whenever justice demands it.
A obtains a decree against B for possession of immovable property and in execution of the decree obtains possession thereof. The decree is subsequently reversed in appeal. B is entitled under this section to restitution of the property, even though there is no direction for restitution in the decree of the appellate court.
Section 144: Application for Restitution
Section 144 does not confer any new substantive right to the party, but merely regulates the power of the court in that behalf.
It provides that, where 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. If any party who is entitled to any benefit by way of restitution, apply for restitution, the court which passed the decree shall order for such restitution, by way ofany order, including order for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are property consequential on such variation, reversal, setting aside or modification of the decree or order.
Which court has power of Restitution?
As per Section 144, parties can apply for restitution in the court which passed the decree or order and the expression “Court which passed the decree or order” shall be deemed to include, —
- where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
- where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order.
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.
BAR TO SEPARATE SUITS
Sub-section (2) of section 144, bar the institution of separate suit for such relief which could be obtained by the application for restitution.
Sec. 144 is founded on the equitable principle that one who has taken advantage of a decree of a court should not be permitted to retain it if the decree is reversed or modified. That is why the marginal note to Sec. 144(1) reads ‘application for restitution’ and the word ‘restitution’ in its ethological sense means restoring to a party on the modification, variation or reversal of a decree what has been lost to him in execution of the decree or indirect consequence of the decree. (Zafar Khan v. Board of Revenue (1984))
Pre-requisite conditions for restitution
For the order of restitution-
- there must be an erroneous judgment;
- the benefit of that erroneous judgment has been received by one party; and
- the erroneous judgment has been reversed, set aside or modified.
If these conditions are satisfied, the court must grant restitution. It is not discretionary but obligatory. (Lal Bhagwant Singh v. Kishen Das, AIR 1953 SC 136)
Nature of proceedings
As held by Supreme Court in Mahijibhai Mohanbhai v. Patel Manibhai, the proceedings for restitution are proceedings in execution. And, an application for restitution dismissed on merits, would operate as res judicata. But if such an application is dismissed on some technical grounds, a fresh application will be maintainable.
An application under Section 144 is an application for execution of a decree and is governed by Article 136 of the Limitation Act, 1963. The period of limitation for such an application is twelve years and it will start from the date of the appellate decree or order.
Section 2(2) of the CPC expressly state that the determination of a question under Section 144 is appealable.
 AIR 1965 SC 1477