NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 8400  OF 2019 (ARISING OUT OF SLP(CIVIL) No(s). 23679 OF 2019)

BANSIDHAR SHARMA(SINCE DECEASED) REP BY HIS LEGAL REPRESENTATIVE    …...APPELLANT(S)

VERSUS

THE STATE OF RAJASTHAN & ORS. …..RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. This appeal  arises from  the  order  dated  21st  August,  2019

passed by the High Court of Rajasthan Bench at Jaipur.

3. The seminal facts relevant for the purpose are that late Shri

Bansidhar Sharma(predecessor of the appellant) filed a suit on 15 th

July,  1961  for  possession, rendition of  accounts  and permanent

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injunction before the Additional District and Session Judge, No. 1,

Jaipur City in which following issues were framed:­

1. Whether the suit temples  were founded  by the  plaintiffs ancestors and his ancestors were Shebeit  and Mahant of the temples entitled to manage the same?

2. Whether the said temples and 24 shops attached to them were founded, built and maintained by the former Jaipur State and managed through their servants?

3. Whether the plaintiff is in possession and management of the suit temples in his own rights and not on behalf of the state as their Pujari or servant?

4. Whether Pandit Mahadev Ji was the Mahant or Shebait of the suit  temples and he handed over management of the temples and shock attached to them to the Dharmarth Vibhag  of the former  Jaipur  estate in the  year  1925  for safety and security and proper management as he was going on long pilgrimage?

5. Whether the plaintiff is the descendant of Pandit Mahadev Ji and entitled to claim the possession of the temple and shops and the account of the income thereof for the period since 1925 from the defendants?

6. Whether the notice under Section 80 of C.P.C. is defective?

7. Whether the suit is within time?

8. Relief?

4. After the  matter  being  heard, trial  Court  vide its judgment

dated 26th November, 1977 holding that there was no substance in

the suit dismissed it with costs.   The judgment of the trial Court

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dated 26th November, 1977 came to be assailed in S.B. Civil First

Appeal  No.  86/1979.  During  pendency  of the  appeal, the  High

Court of  Rajasthan passed an ad­interim order on 11th  January,

1978:­

“Issue notice to the G.A. and the respondents. Meanwhile the appellant shall not be dispossessed from the premises where he resides.   The rest of the relief claimed by the appellant will be considered after the notices are served.”

5. In furtherance of the ad­interim  order dated  11th  January,

1978, S.B. Civil second stay application no. 163/96 came to be filed

at the instance of the appellant­plaintiff on 9th October, 1996 and

the Single Judge of the High Court passed a further interim order

on second stay application on 10th  October, 1996 which is as

under:­

“I have heard learned counsel for the parties on the second stay application.

During the course  of  hearing, learned counsel for the appellant has placed at large upon the copy of the Order dated 11.1.78 whereby the learned Division Bench of this Court had directed that “in the meanwhile the party will not be dispossessed.”

This fact has also not been controverted by the respondents in their reply to the application, since the same has been reproduced in the reply.

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Shri  Mathur, learned  counsel for the respondents  has placed on record some documents along with his affidavit.

The copies of the said document have already been supplied to the learned counsel for the appellant.

Let reply to the said affidavit be filed  by the learned counsel for the appellant within one week from today.

In the meanwhile the status quo which existed as on the date of passing of the order dated 11.1.78 in respect of the premises in  question shall continue  pending the  hearing and disposal of this appeal.

Let this appeal be listed on 20th October, 1996.”

6. In sequel thereof, further interim order came to be passed on

22nd November, 1996.   The operative part of the Order dated 22nd

November, 1996 is referred hereunder:­

“Consequently the second stay application is allowed. The respondents are directed not to interfere with the rights of the applicants to perform sewa Pooja of the idols in the said temple and also not to dispossess the applicants from the premises of the temple in which they are residing. Respondents are further directed to restore the possession of the temple of Lord Laxminarainji, i.e., the temple in question to  the applicants/appellants  forthwith or  in any case not later than 3rd  of December, 1996 and the compliance report be submitted by the respondents in this regard immediately since the  possession  of the  aforesaid temple  was taken  by the respondents in  1988  from  late Bansidhar forcibly and without due process of law and without obtaining any decree of possession or an order of eviction against late Bansidhar or the present applicant/appellants from a competent court.   The interim order, dated 10.10.1996 passed by this Court clarifying the earlier  order  dated 11.1.1978 passed by  learned Division bench of this Court is confirmed pending hearing and final disposal of the appeal.  Let the appeal be listed for hearing and final disposal on 17.12.1996.”

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7. Later, the  S.B.  Civil First  Appeal  no.  86/1979  after finally

being heard, came to be dismissed vide judgment dated 20th April,

2018 and the learned Single Judge was conscious of the fact that

certain  interim orders had been passed pending first appeal and

noticing the  order  dated 10th  October,  1996 and 22nd  November,

1996, while dismissing the appeal, passed the following operative

order:­

“ In compliance of the said order, appellant had been given the possession of the suit property.   Through the instant application, it is prayed that the position as existed prior to 10.10.1996 be restored or the order dated 10.10.1996 be recalled or modified.  In the opinion of this Court, when the appeal has been dismissed and the appellant has been found to have no rights whatsoever over the disputed temple and  properties appurtenant to it, the application deserves to be allowed and the position as existed before 10.10.1996 deserves to be restored.  Application is allowed accordingly.

Resultantly, this appeal is dismissed with a cost of Rupees One Lakh and the plaintiff is directed to hand over the possession of the disputed property to the defendants­ respondents within a period of two months from today, failing which, the defendants­respondents will be entitled to get the possession through the Court.   Further, the defendant­respondents are also entitled to get the cost of litigation from the plaintiff­appellant.”

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8. The judgment dated 20th April, 2018 was further challenged in

SLP(C ) No. 13439 of 2018 before this Court and that came to be

dismissed on 17th May, 2018.   After dismissal of the special leave

petition by this Court, the respondents sent an intimation to the

appellant­plaintiff to hand over the possession in compliance of the

order of the Single Judge of the High Court dated 20 th April, 2018,

but when no action was taken by the appellant, interlocutory

application was filed under Section 151 read with Section 144 of

Code of Civil Procedure, 1908(hereinafter being referred to as CPC)

before the Single Judge of the High Court.

9.   After hearing the parties, the Single Judge of the High Court

noticing the rival contention of the parties allowed the application

vide its order dated 21st  August, 2019, with a liberty to the

respondent­State to take possession of the suit property and to take

police or other aid, if necessary, in taking possession of the subject

property in question which is under challenge in appeal before us.

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10. Basic bone of contention of the learned counsel for the

appellant is that the execution application under Section 144 CPC

would lie only before the Court of first instance which, in the

instant case, is the Court of Additional District and Session Judge,

No. 1, Jaipur City and not the High Court and according to the

learned  counsel, the impugned  order  passed  by the  High  Court

dated 21st August, 2019 is without jurisdiction.   

11. Learned counsel further submits that appellant  has lost a

valuable right of appeal in view of exercise of  jurisdiction by the

High Court and submits that the order being not sustainable in law

deserves to be set aside and the respondents may be permitted to

adopt and avail the remedy prescribed under the law.

12. Learned counsel for the respondents, on the other hand, while

supporting the finding recorded by the learned Single Judge

submits  that there was no decree or  order of the trial  Court  by

virtue of which the appellant was given possession of the subject

property as the suit came to be dismissed in the first instance by

the trial Court which came to be affirmed in first appeal and also by

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this Court.  In the present circumstances, the provisions of Section

144 CPC are not attracted as there being no variation or reversal of

a decree or order as contemplated by Section 144 CPC.

13. Learned counsel further submits that since the  possession

was handed over to the appellant under the interim order passed by

the  Single  Judge  of the  High  Court  pending first appeal,  which

finally came to be dismissed and thus, in the given circumstances,

it was imperative upon the appellant to restore possession of the

subject  property  and mere mentioning of  Section 144 would not

denude the rights of the parties in adopting an appropriate

admissible mechanism under the law and this what has been

considered by the High Court under the impugned order dated 21st

August, 2019 and that needs no interference by this Court.

14. Before evaluating the rival submissions, it would be

appropriate to advert to Section 144 CPC:­

“144.  Application for restitution – (1) Where and in so far as a decree or an order is varied or reversed in any appeal,

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revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the  parties in the  position  which they  would  have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and, for this  purpose, the Court  may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.”

15. The scope of post 1976 amended Section 144 CPC has been

considered by  this  Court in  Neelathupara Kummi Seethi  Koya

Phangal(Dead) by LRs  Vs.  Montharapalla Padippua Attakoya &

Ors.   1 in paragraph 3 as under:­

“3. In the 1976 Amendment Act suitable amendment was made and Explanations (a) to (c) were added but they have no relevance for the purpose of the case. The question therefore, is  whether the transferee executing court is a “court of first instance” within the meaning of Section 144(1) CPC. A bare reading of sub­section (1) does indicate that the application for restitution would lie when the decree executed is reversed or varied or modified. The doctrine of restitution is based upon the high cardinal principle that the acts of the court should not be allowed to work in injury or injustice to the suitors. Section 144, therefore, contemplates restitution in a case where property has been received by the decree­holder under the decree, which was subsequently either reversed or varied wholly or partly in those proceedings or other proceedings. In those set of circumstances law raised an obligation on the party that received the benefit of such reversed judgment to

1 1995 Supp(3) SCC 760

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restitute the property to the person who had lost it. In that behalf in sub­section (2) a right of suit was taken out and an application under sub­section (1) was contemplated for execution of the decree by way of restitution. Sub­section (1) clearly indicates that it is a “court of first instance” in which the proceedings in the suit had been initiated and a decree was passed or the suit was dismissed, but subsequently on appeal decreed or vice versa. The court of first instance would, therefore, mean the court which passed the decree or order. The transferee executing court is not the court that passed the decree or order, but the decree was transmitted to facilitate execution of that decree or order since the property sought to be executed or the person who is liable for  execution  is  situated or  residing within the  jurisdiction of that  executing court.  Therefore, the court which is competent to entertain the application for restitution is the court of first instance i.e. Administrator's Court (Subordinate Judge) that decreed the suit, and not the court to which the decree was transmitted for execution. The court of first instance of the administrator is  now designated as Court  of  Subordinate Judge, but application for restitution was filed in executing court, namely, the Court of District Munsif at Androth. Thus in the face of the language of Section 144, the District Munsif at Androth, by no stretch of imagination be considered to be court of first instance. Its order of restitution is without jurisdiction and, therefore, it is a nullity. The High Court is accordingly right in its conclusion that the order for restitution is clearly vitiated by error of law and  lack of jurisdiction.  We do not find any ground warranting interference. The appeal is dismissed, but in the circumstances without costs.”

16. It has been further considered by other coordinate Bench of

this Court in the recent past in Murti Bhawani Mata Mandir Rep.

Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh

& Ors.   2 as under:­

2 2019(3) SCC 707

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“Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose.   In  that  situation, the Court  which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order  or such part  thereof  as has been varied, reversed, set aside or modified.  The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed.”

17. It  clearly transpires  that  Section 144 applies to  a situation

where a decree or order is varied or reversed in appeal, revision or

any other proceeding or is set aside or modified in any suit

instituted for the purpose.  The principle of 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 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 decree which has been set aside or an order is

varied or reversed and the Court in making restitution is bound to

restore  the  parties,  so far  as  they  can be restored, to the  same

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position as they were in at the time when the Court by its action

had displaced them.

18. Indisputedly, in the instant case, there was no decree or order

of the trial Court by virtue of which the appellant was given

possession of the subject property.   On the contrary, the suit filed

at the instance of the appellant­plaintiff came to be dismissed with

costs and that came to be confirmed on dismissal of the first appeal

by the Single Judge of the High Court and special  leave petition

filed before this Court also came to be dismissed.   The possession

was handed over to the appellant of the subject property under the

interim order  passed  by the  High  Court  pending first appeal of

which a reference has been made and after the appeal came to be

dismissed, its logical consequence was noticed by the High Court in

its judgment dated 20th April, 2018 directing the appellant to hand

over possession of the subject property to the respondents­

defendants obviously for the reason that on dismissal of the first

appeal preferred by the appellant, he was under an obligation to

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restore back peaceful possession to the respondents on vacation of

the interim orders .

19.   In the present facts and circumstances, the respondents have

not committed any error in taking decision to call upon the

appellant for  handing over  possession of the subject  property  at

least  after the special leave  petition filed  at the instance  of the

appellant came to be dismissed under order dated 17th May, 2018

and in sequel thereto, there  was  no  other remedy left  with the

respondents than to file an  application  under  Section  151  CPC

before the High Court for restoration of possession of the subject

property.  

20. After we have heard the parties, find no error being committed

by the High Court in passing of the order dated 21st August, 2019

directing the appellant to hand over possession of the subject

property in question which was handed over to the appellant under

the interim orders passed by the High Court pending S.B. Civil First

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Appeal No. 86/1979 which finally came to be dismissed vide

judgment dated 20th April, 2018.

21. The submission of the learned counsel for the appellant that

execution application under Section 144 CPC would lie only before

the Court of first instance, which in the instant case is Additional

District and Session Judge, No. 1, Jaipur City and not the High

Court and the impugned judgment is without jurisdiction, is

without substance for the reason that there was no decree or order

of the trial Court which is varied or reversed in appeal, revision or

any other proceeding or is set aside or modified in any suit

instituted for the purpose.   Indisputedly, the possession was

handed over to the appellant­plaintiff pursuant to the interim order

passed by the High Court, pending first appeal which finally came

to be dismissed, its logical  consequence was to restore back the

peaceful possession of the subject property to respondents­

defendants.   In the given circumstances, the provisions of Section

144 CPC, in our view, are not attracted as there being no variation

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or reversal  of  a decree or order as contemplated by Section 144

CPC.

22.  Before parting with the order, taking note of the fact that the

proceedings were initiated at the instance of the appellant­plaintiff

way back in the year 1961 and almost 59 years have rolled by now,

to give a quietus to the litigation and also the fact that the appellant

had failed at all the stages, having no authority to hold possession

of the  subject  property,  we, therefore,  consider it  appropriate to

direct the appellant to hand over peaceful possession of the subject

property to the respondents­defendants in compliance of the

judgment of the High Court dated 20th  April,  2018 followed with

order dated 21st  August,  2019 positively within a period of  eight

weeks from today failing which this Court will take serious note of

the matter and proceedings may be instituted against the appellant­

plaintiff for deliberate defiance of the order of this Court.

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23. The appeal is  without  substance and accordingly  dismissed

with the observations as indicated above.  No costs.

24. Pending application(s), if any, stand disposed of.

……………………………………………J. (MOHAN M. SHANTANAGOUDAR)

..………………………………………….J. (AJAY RASTOGI)

NEW DELHI NOVEMBER 05, 2019   

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