Nityanand Tripathi and Others vs Addl. District Judge and Others

M. Katju, J.—This writ petition has been filed against the impugned order dated 12.5.1995.

I have heard Sri R.N. Singh, learned Counsel for the Petitioner and Sri Sankatha Rai, learned Counsel for the Respondent. It appears that the Respondent Nos. 3 and 4 filed a suit for specific performance against the Petitioners which was decreed on 19.3.1973 vide Annexure-1 to the writ petition. Against this Judgment, the Petitioners have filed an appeal in this Court which was allowed on 15.4.1991 (Annexure-2 to the writ petition) and the decree of the trial court was set aside. It may be mentioned that after the decree of the trial court on 19.3.1979, the Respondent Nos. 3 and 4 had obtained possession in pursuance of the said decree. Thereafter that decree has been set aside by the judgment of this Court against which the Respondents filed a SLP in the Supreme Court. The Supreme Court has passed three orders which are annexed to the counter-affidavit as Annexures C.A. 4, C.A. 5 and C.A. 6. By the order dated 27.11.1991, the Supreme Court has maintained status quo between the parties. Thereafter by the order dated 13.2.1992, the earlier order was modified and the stay which was continued was only regarding the decree for mesne profit and the Appellant was entitled to withdraw the amount deposited in the Bank. Thus, It appears that by the order dated 13.2.1992, the Supreme Court vacated the stay order regarding possession which had been granted by the first interim order dated 11.7.1991. Thereafter a third order was passed by the Supreme Court on 15.3.1995 by which the court was directed to pass necessary orders on the application for restoration, After a careful perusal of these three orders of the Supreme Court, 1 am of the opinion that the Supreme Court has vacated the first Interim order dated 11.7.1991 as far as possession is concerned. The third order only directed that the application for restoration be considered by the court.

It is settled law that restoration is obligatory once a decree is set aside. It is the duty of the court to grant restitution in such cases. In the case of Mrs. Kavita Trehan and another Vs. Balsara Hygience Products Ltd., , the Supreme Court had examined the earlier decisions of the House of Lords and Privy Council and also of the Supreme Court regarding the duty of the court to grant restitution. Thus, in the case of Jai Berham and Ors. v. Kedar Nath Marwari and Ors. AIR 1922 PC 269 Privy Council observed:

It is the duty of court u/s 144, CPC to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed.

or indeed does this duty of Jurisdiction arise merely under the said section. It is inherent in the general Jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved.

Similarly, in the case of Binayak Swain Vs. Ramesh Chandra Panigrahi and Another, , the Supreme Court observed as under:

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 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.

Several other decisions have also been referred to by the Supreme Court in Mrs. Kavila Trehan''s case (supra) and need not be repeated. It is settled law that grant of restitution is necessary once a decree is set aside. In the present case, when the decree of the trial court for specific performance is set aside, then even though Plaintiffs have got possession they have to restore possession co the Defendants.

Sri Sanktha Rai learned Counsel for the Respondent urged that the Plaintiff did not get possession in pursuance of the decree. I am not inclined to accept this contention. It appears that when the Defendant did not execute the sale deed in favour of the Plaintiff, the Plaintiff made an application to the court and then the court executed the sale deed in favour of the Plaintiff. We have to see the matter logically. The whole basis of the possession of the Plaintiff is pursuant to the decree dated 19.3.1979. He could not have got possession but for the decree. Thus the decree dated 19.3.1979 is the basis on which the Plaintiff had got possession, and it cannot be said that even if the decree is set aside, he is entitled to remain in possession of the property. In my opinion, the submission of the learned Counsel for the Respondent is hyper-technical.

Sri Sankatha Rai learned Counsel for the Respondents urged that the Petitioners have alternative remedy of filing an appeal. It may be noticed that against the decree dated 19.3.1976, an appeal had been filed and this Court set aside the trial court''s judgment by its judgment dated 15.4.1991. It appears that thereafter when the present Petitioner applied for restitution, the said application was allowed, but against that order the Respondent filed an appeal which was allowed by the order dated 12.5.1995 (Annexure 12 to this writ petition). Aggrieved, this petition has been filed in this Court. It is well settled that the alternative remedy is not an absolute bar to a writ petition. Whether the court Under Article 226 should relegate the Petitioner to alternate remedy is a matter in its discretion and It is not that alternative remedy is an absolute bar. Since the law is settled that restitution must be granted in view of the Supreme Court''s decision in the case of Mrs. Kavita Trehan (supra), I am inclined to exercise my discretion in this case.

In view of the above, the judgment dated 12.5.1995 is set aside and I direct the Respondent to restore possession of the property in dispute to the Petitioners within three months from today. Petition is allowed. No order as to costs.