Smt. Vani Bhai Sobhani since that through Smt. Asha Hironi and Others vs State of M.P. and Others

This Civil Revision under section 115 CPC is directed against the the order dated 19/05/2017 passed by Additional District Judge, West Nimar Camp Bhikangaon in Civil Misc. Appeal No.18/2016 confirming the order dated 08/09/2016 passed by Civil Judge, Class-I, Bhikangaon in Civil Case No.2/16 (Raju Vs. Budabai and others) allowing the application under section 144 CPC.

Facts relevant and necessary for disposal of this revision petition in nutshell are to the effect that a suit for declaration, recovery of possession and mesne profits was decreed on 04/08/1981 in relation to an agricultural land admeasuring 5.57 acres falling in khasra No.20/1 and 20/2 situated in village Awaliya, Tahsil Bhaikangaon (For short, ''the suit land''). An appeal arising therefrom was allowed on 10/10/1984 setting aside the judgment and decree passed by the trial Court with an order of remand for fresh trial.

Being aggrieved thereby, the applicants/plaintiffs have filed Miscellaneous Appeal No.302 of 1984 and the same was dismissed by this Court vide order dated 01/03/1995 upholding the order passed by the appellate Court dated 10/10/1984.

During this period, the possession of the suit land was delivered to the plaintiffs and defendant No.1 through execution proceedings.

In the backdrop of the aforesaid facts and circumstances of the case, the non-applicants/defendants have filed an application under section 144 CPC on 01/05/1997 for restitution of possession and mesne profits before the trial Court. The application was contested. However, the trial Court by its order dated 08/09/2016 allowed the application directing restitution of possession in favour of the non-applicants/defendants and to pay mesne profits at the rate of 2,00,000/- in eight equal installments within three months, delivery of possession and mesne profits at the rate of Rs.10,000/- per year till delivery of possession.

The appellate Court has confirmed the aforesaid order by the impugned order.

Before adverting to the orders passed by the Courts below, it is considered apposite to reiterate the law in the context of section 144 CPC;

The principle of law enunciated under section 144 CPC is founded on 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. The word ''restitution'' in the marginal note of Section 144(1) in its etymological 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 in direct consequence of the decree. In such a proceeding, the party seeking restitution is not required to satisfy the court about its title or right to the property save and except showing its deprivation under a decree and the reversal or variation of the decree [1984 (Supp) SCC 505 Zafar Khan and others Vs. Board of Revenue, U.P., and others; referred to].

The duty of the court, when awarding restitution under section 144 CPC, is imperative. It shall place the applicant in the position in which he would have been if the order had not been made and for this purpose, the court is armed with powers as to mesne profits, interest and so forth (Guran Ditta Vs. T R Ditta, AIR 1935 PC 12).

In Lala Bhagwandas Vs. Lala Kishen Das, AIR 1953 SC 136 has explained the principle underlying section 144 and observed that on the reversal of a judgment, the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution wold be clearly contrary to the real justice of the case''.

In Binayak Vs. Ramesh Chandra, AIR 1966 SC 948, the Hon''ble Supreme Court reversed the judgment of the Orissa High Court in Ramesh Chandra Vs. Binayak, AIR 162 Ori. 11 where the High Court had refused restitution on the ground that though the decree was reversed in appeal, the suit was remanded and on remand, the same decree was confirmed. The Supreme Court held that the subsequent passing of the same decree did not validate the execution of the decree which was reversed in appeal.

The Hon''ble Supreme Court in the case of South Eastern Coalfields Ltd., Vs. State of Madhya Pradesh, AIR 2003 SC 4482 has observed that ''to make restitution for what a party has lost, it is the duty of the court to do so, unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same.

Further, the authority and jurisdiction vested upon the Court for restitution is not discretionary but upon satisfaction of the following three conditions, namely;

(i) the restitution sought must be in respect of the decree or order which had been varied or reversed; (ii) the party applying for restitution must be entitled to a benefit under a reversing decree or order; and (iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. As regards mesne profits, the Courts have laid down test to the effect that it is not what the party excluded would have made but what the party in possession has or might reasonably have made. Further, when a decree under which possession has been taken is reversed, mesne profits should be awarded in restitution from the date of dispossession and not merely from the date of decree of reversal [Madhavan Pothi Vs. Subramaniam, AIR 1951 TC 14, referred to].

The Courts below bearing in mind the aforesaid principles of law have ordered for restitution of possession and also mesne profits in favour of the non-applicants/defendants. The objection as against maintainability of the application under section 144 CPC on the ground of limitation has rightly been rejected holding the same maintainable reckoning the period of limitation from the date of dismissal of Miscellaneous Appeal No.302/1984 on 01/03/1995 (supra) filed by plaintiffs before the High Court since the application was filed on 01/05/1997, i.e., after two years whereas the limitation prescribed under Article 136 of the Limitation Act, 1963 is twelve years.

The Courts below have also well discussed the justification of possession even though the decree passed by the appellate Court was not on merits while reversing and setting aside the judgment and decree passed by the trial Court and ordering for remand. The aforesaid justification finds full support from the judgment of the Hon''ble Supreme Court in the case of Binayak (Supra).

As regards the issue of mense profits, the same is well discussed in paragraph 23 of the order by the appellate Court justifying the mesne profits as ordered by the trial Court, i.e.,

Rs.2,00, 000/- and Rs.10,000/- per year till delivery of possession with default clause.

The judgments cited by the learned counsel for the applicants by the Hon''ble Supreme Court in the case of Lal Bhagwant Singh Vs. Sri Kishen Das, AIR 1953 SC 136 and this Court in the case of Karanm Chand (Plaintiff) Vs. Smt.Kamlesh Kumari and another (Defendants), 1972 MPLJ 955 in the facts and circumstances of the case do not have any bearing to support the case of the applicants and are distinguishable on facts though the principles underlying are beyond cavil of any doubt.

This revision petition fails and is hereby dismissed.