Smt. Sarnalata Dasi vs Sri Monimohan Modak and Another

Amiya Kumar Mookerji, J.—This appeal arises out of a proceeding for restitution u/s 144 of the CPC Code. In execution of an exparte rent decree, the suit property was auction-purchased by the Respondents. The Appellant brought a title suit for a declaration that the sale held in execution of the aforesaid rent decree, was fraudulent and inoperative. The learned Munsif decreed the Appellant''s suit. Thereupon she filed an application for restitution of the disputed property u/s 144 CPC Code. The trial Court allowed her application and granted restitution. On appeal, the learned Subordinate Judge reversed the decision of the trial court upon the view that the Appellant was not entitled to have the restitution of the suit property as the said rent decree had not been varied or reversed.

It was found by the learned Munsif that the Respondents obtained the rent decree against the Appellant by practicing fraud upon her. If a decree has been obtained by fraud it may be possible to have it varied or reversed by another court in another suit. There seems to be no reason why restitution u/s 144 CPC Code, should be confined only to cases where the decree has been "varied or reversed" in appeal or revision and has not been "varied or reversed" by any court by any of the other modes.

It seems that the learned Subordinate Judge was in error in holding that as the rent decree had not been varied or reversed as appeal, the Appellant was not entitled to restitution.

In the result, this appeal is allowed, the judgment and decree of the court of appeal below are set aside and that of the trial court restored.

There will be no order as to costs.