Mulkjit Singh vs Narain Singh and another

Pritam Singh Pattar, J.—Mulkjit Singh plaintiff had filed a suit for possession of 77 Kanals 6 Marlas of land situated in the revenue estate of Samana, against Narain Singh and the Wakf Board, Ambala and his suit was decreed by the trial Court. In execution of the decree Mulkjit Singh plaintiff obtained possession of the land. Narnin Singh defendant filed an appeal against this decree in the Court of the District Judge, Patiala, which was accepted by the Additional District Judge, Patiala, on April 6, 1973, and the decree of the trial Court was set aside and the suit of Mulkjit Singh plaintiff was dismissed. Feeling aggrieved Mulkjit Singh plaintiff filed this second appeal in the High Court which was admitted. His dispossession was stayed meanwhile. Narain Singh defendant-respondent filed this application to vacate the stay order. It was alleged that he is entitled to get back possession from the appellant under the provisions of section 144 of the Code of Civil Procedure. This application was contested by the appellant.

Section 144(1) of the Code of Civil Procedure, lays down that where and in so far as the decree is varied or reversed the Court of first instance shall on the application of any party entitled to any benefit by way of any restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the same position which they would have occupied but for such decree as has been varied or reversed and for this purpose the Court may make any orders, including orders for refund of costs and for payment of interest, damages etc

In The Commissioner of Income Tax Vs. Mysore Iron and Steel Works, , the plaintiff obtained a decree for possession in trial Court and obtained possession in execution thereof from the defendants who were in possession. On appeal the plaintiffs suit was dismissed. The plaintiff then filed second appeal. The plaintiff''s counsel applied for stay of execution by the defendant of the decree of the first appellate Court. He was prepared to give security for the due performance of such decree as may be passed in second appeal. The defendants opposed the application on the ground that they had become entitled to restitution u/s 144, by reversal of the trial Court decree by which they were dispossessed. On these facts it was held as under:--

That it was clear from the words of section 144 that the right to restitution was absolute and the Court of first instance had no discretion in the matter. It was bound to grant restitution if the conditions laid down by the section were satisfied, even if the judgment by virtue of which it arose was subject to a second appeal.

There is obviously a difference between a case where a decree for possession is passed, whether by the trial Court or by the Court of appeal, and a stay is applied for either before the Court of appeal or before the Court of second appeal as the case may be, and a case where the property involved was in the possession of one party and went into the possession of another by reason of a judgment and decree, which judgment or decree was reversed in appeal, and the stay is asked for in the second appeal.

In the former class of cases the discretion of the Court to grant stay will be exercised in accordance with the provisions of Order 41, rule 5; but in the latter class the effect of the Court''s granting a stay would be to deprive the party who succeeded before the Court of first appeal of a right of restitution which is conferred upon him in absolute terms by section 144. Indeed, the Court has no jurisdiction to deprive such a party of the right conferred upon him by statute. No stay would therefore be granted to the plaintiff, since if stay were granted it would negative the right of restitution which the defendant had acquired in this case.

To the same effect was the law laid down in AIR 1929 138 (Nagpur) . In M. Rafiuadin and others v. Gaddam Narayana AIR 1962 AP 525, it was held as under:--

In the matter of stay of restitution, cases where restitution could be had are distinguishable as outside the execution proceedings falling under Order 41, rule 5 for the purpose of stay applications, in the matter of stay of (sic) in cases where the appellant has got into possession of the disputed properties only in pursuance of the erroneous decree of the trial Court considerations of real justice weigh with Courts and not notion, of any balance of convenience such as disturbance of possession. Consequently there Can be no stay of restitution on account of the pendency of a second appeal in a case where the appellant has got into possession in pursuance of an erroneous decree of the trial Court which is reversed in appeal.

To the same effect was the law laid down in Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das, . The Law laid down in these authorities is aptly applicable to this case.

The legal position, therefore, is that if a decree for possession of property is passed by the trial Court or by the Court of first appeal and stay of is execution is applied for either before the Court of first appeal or the Court of second appeal, as the case may be, the Court will exercise its discretion in accordance with the provisions of Order 41 Rule 5, Civil Procedure Code. But, where the property in suit was in possession of one party and the opposite party took its possession in execution of an erroneous decree of the trial Court, which is reversed in appeal, then the appellant in second appeal cannot be granted stay of restitution on account of the pendency of the second appeal because of the mandatory provisions of Section 144, Civil Procedure Code; The right of restitution u/s 144 is absolute and the Court has no jurisdiction to deprive such a party of the right conferred upon him by statute and is bound to grant the same if the conditions laid down in this section are satisfied. The doctrine of restitution contained in section 144 is that on the reversal of judgment the law raises an obligation on the party to the case who received the benefit of the erroneous; judgment, to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation. Admittedly, at the time of the filing of this suit Narain Singh defendant respondent was in possession of the land in suit. Mulkjit Singh plaintiff obtained possession of this land in execution of the decree of the trial Court passed in his favour. However, this decree was reversed and set aside by the lower appellate Court and according to section 144 of the Code of Civil Procedure, Narain Singh is entitled to get back possession of the land. The provisions of section 141 of the CPC are mandatory. Therefore, the order dated April 17, 1973, staying the execution of the decree is vacated. No order as to costs.