Karunakaran Nair vs Mehta Private Ltd.

S. Sankarasubban, J.—This C.M.A. is filed against the judgment in A.S. 70/93 on the file of the Sub Court, Kozhikode. The Respondent in the C.M.A. is the Appellant. C.M.A. is filed against the order of remand passed in the above appeal. The Appellant as Plaintiff instituted O.S. 345/78 for a permanent injunction restraining the Respondent herein and two Ors. from continuing the use and occupation of a building which belongs to the Appellant. The case of the Appellant was that the Respondent was occupying the building as a licensee. The trial court dismissed the suit. Against that, the Petitioner preferred an appeal. The Appellate Court found that the Respondent was a licensee and granted a decree restraining from continuing the use and occupation of building. According to the Appellant, the Respondent and other Defendants obeyed the decree and surrendered the building to the Appellant and thereafter the Appellant is in peaceful possession, of the suit properly. However, the Respondent filed S.A. 1009/82 before this Court. By judgment dated 22nd July 1988, this Court set aside the decision of the Lower Appellate Court and remanded the case to the Lower Appellate Court for decision de novo. On remand, the appellate court confirmed the decree of the trial court dismissing the suit. That decree was confirmed in appeal.

Thereafter the present Respondent filed E.A. No. 451/89 in the suit under Sections 144 and 151 of the CPC claiming restitution. The Respondent alleged that after the Sub Court''s Original judgment dated 30th September 1982 the Appellant broke open the lock of the plaint schedule premises and reduced the property into his possession taking advantage of the decree passed by the Sub Court. The Appellant filed objection and contended inter alia that the Respondent has no right to the relief claimed in the application and that such relief cannot be granted in an application u/s 144 of the Code of Civil Procedure. The executing court dismissed the application on 17th August 1993 finding that the application is not maintainable. The Respondent filed an appeal against the said order as A.S. 70/93 before the Subordinate Judge''s Court, Kozhikode. The Subordinate Judge held that the application for restitution was maintainable. But remanded the matter for considering the question whether the dispossession was under the cover of the decree or in consequence of the decree. It is against the above judgment that the present appeal has been filed.

Learned Senior Counsel for the Appellant Sri Sukumaran Nair contended that in so far as the Appellant did not come into possession of the building in execution of tbe decree, the petition for restitution was not maintainable. On the other hand, the learned Counsel for the Respondent Sri Brahmanandan contended that it was only in consequence of the decree that the Appellant got possession of the building. It is not necessary for the purpose of an application for restitution the delivery should have been obtained only through execution. The question for consideration is that whether the view of the court below that the application for restitution was maintainable. Before dealing with the question, I shall refer to the following observations of Privy Council in Alexander Rodger Charles Carnnie v. Comptoir D Escompte De Paris (1871) L R 3 P.C. 465:

...One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression ''the act of the Court'' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal...

I shall also refer to the observation in Binayak Swain v. Ramesh Chandra Panigrahi (1996) 3 S.C.R. 24:

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.

In Halsbury''s Laws of England, 4th Edn., 434 states:

Common Law. Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, Anr. which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.

There have been decisions of the Supreme Court and various High Courts that the relief for restitution is not merely confined to Section 144 Code of Civil Procedure. The Court has inherent power to grant restitution u/s 151. Code of Civil Procedure. The question that arises for consideration in this case is whether a person is entitled to file an application on the reversal of the decree when the benefits were taken away not through the process of execution of the Court. The contention of the Appellant is that he did not apply for execution when the suit was decreed by the appellate court. According to him, the property was surrendered by the Respondent. A similar question came up for consideration before a Division Bench of Travancore-Cochin High Court in Jacob Syriac Nidhiri and Ors. v. Nagendra Prabhu Krishna Prabhu and Anr. AIR 1951 T.C. 226 (1) consisting of Govinda Pillai and Gangadhara Menon, JJ. It is useful to extract the following observations from that case:

It is not necessary for the application of this section that possession of property should have been obtained in execution of the decree which was subsequently reversed. The section would apply even if possession of the property was taken otherwise than by execution provided it was obtained under cover of or in consequence of the decree.

Their Lordships referred to the decisions in Hara Chandra v. Chintamoni 21 I C 84, in Sheodihal Sahu v. Bhawani 29 All 348 and AIR 1941 343 (Lahore) . Their Lordships also found that the ruling in Periyaswamy v. Karutkiah AIR 1918 Mad 1293 and Govinda v. Muniswamy AIR 1937 Mad. 135 was not against this proposition. In Surya Datt v. Jamna Datt AIR 1920 All 190 (2) the Division Bench observed:

Where a decree-holder obtains possession of property decreed to him otherwise than by executing the decree but under colour thereof, and the decree is set aside on appeal, the opposite party is entitled to be replaced in possession under the terms of Section 144.

The Honourable Supreme Court had occasion to consider the question of restitution in the ruling reported in Mrs. Kavita Trehan and another Vs. Balsara Hygience Products Ltd., Their Lordships held to the Law of Restitution encompases all claims founded upon the principle of unjust enrichment. The Law on this point has been considered elaborately by Venkatachaliah, C.J. on behalf of the Bench. There are number of other decisions which goes to show that it is not necessary to get the benefit of Section 144 that the possession should have been lost through a process of execution. Learned Counsel for the Appellant referred to the decisions of the Madras High Court in Periyasamy Thevan and Others Vs. Karuthiah Thevan and Another, and in K. Govinda Chettiar and Others Vs. A.N. Muniswami Chettiar and Others, . In AIR 1918 Madras 1293 the Plaintiff obtained a decree for injunction and got possession of the property in dispute with the aid of the police. The decree was reversed in appeal. Defendants applied for restitution of possession and for removal of the superstructure erected by the Plaintiffs over the property. The Court held as follows:

Section 144 authorizes the grant of relief in order to replace the parties in the position which they would have occupied but for the erroneous decree.

The Court also held that:

The Defendants did not lose their possession because of any action taken under the decree, but by an act of violence on Plaintiff''s part independent of it and inconsistent with the case on which it was obtained.

In K. Govinda Chettiar and Others Vs. A.N. Muniswami Chettiar and Others, , was Anr. case where there is an order for temporary injunction wherein a suit at the instance of Plaintiffs and taking advantage of that order, the Plaintiffs without notice to Defendants forcibly took possession of the temple and its properties by breaking open the locks of the temple. This order was suspended. Subsequently thereafter Defendants applied for restitution of the properties. The application for restitution was allowed by the trial court. Against that, the matter was taken to the High Court. The court following the decision in Periyasamy Thevan and Others Vs. Karuthiah Thevan and Another, held that the application for restitution was not maintainable. According to court the relief granted was only to assert the individual right of the Plaintiffs to perform the Kalasandhi and Sayarakshai pujas and to restrain the Defendants from interfering with the said right and to have a Gurukkal of their own to do the poojas. In pursuance of the order, delivery of properties was taken forcibly. What was done was in excess of what was granted by the Court. Hence the application for restitution was rejected.

A similar question came up before the Karnataka High Court in Sakamma v. Eregowda 1974 (2) Kar L J 357. In that case the Plaintiff instituted suit for permanent injunction restraining the Defendants from interfering with the possession and enjoyment of the property. He obtained an order of injunction. Subsequently the suit happened to be dismissed. The appeal filed against the decree was also dismissed. On the strength of the interim order, the Defendant was dispossessed. Hence she filed an application for restitution. Malimath, J. (as he then was) in the above case held that:

The suit being one for permanent injunction, the fact that the Plaintiffs suit has been dismissed resulting in the vacation of the interim order of injunction granted does not in my opinion, entitled the Appellant to seek restitution by means of an aplication u/s 144 Code of Civil Procedure....The interim order did not direct delivery of possession by the Defendant to the Plaintiff.

On a conspectus of the above decisions, it is seen that if a person is dispossessed under the colour of the decree and that decree is subsequently reversed, then he is entitled to restitution. In the Madras and Karnataka cases the dispossession was not on accounts of the decree; either it was in excess of the order contemplated or was not in accordance with the order. Hence those decisions are distinguished. In the above view of the matter, I am of the view that the order of the court below is correct.

C.M.A. is dismissed.