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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 880 OF 2019   (Arising out of SLP(C) No. 2378 of 2006)

MURTI BHAWANI MATA MANDIR REP. THROUGH  PUJARI GANESHI LAL (D) THROUGH LR KAILASH  Appellant(s)

                               VERSUS

RAMESH & ORS.                                 Respondent(s)

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, J.

Leave granted.

This appeal arises from a judgment of a learned Single

Judge of the High Court of Madhya Pradesh at its Bench at

Indore.  A suit1  was instituted in the Court of the Civil

Judge, Class II, Sardarpur, Dist. Dhar (M.P.) by one Ganeshi

Lal  claiming  as  the  next  friend  of  the  diety  situated  at

Bhawani Mata Mandir, Gram Dasai, Tehsil Sardarpur.  The suit

was  for  a  permanent  injunction  against  Geetabai  (since

deceased) and respondent Nos. 1 and 2 restraining them from

interfering  with  the  possession  of  the  plaintiff  over  the

agricultural land in dispute.    

1Suit No. 60/A/77

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The  issues  which  were  framed  in  the  suit  for  the

conclusion were as follows:

“Sl.   No.  

I S S U E S CONCLUSION

1. Whether  on  land  bearing Survey  No.  1630,  1631  & 1632  belonging  to  the ownership  Murti  Bhawani Mata  Mandir  situated  in village  Dasai  possession of  plaintiff  is continuously  coming through Dulichand son of Shrichand?

No

2(a) Whether plaintiff is  Pujari of Bhawani Mata  Mandir ?

2(b) If plaintiff is Pujari,  then in what capacity ?

Judgments not  necessary

3. Whether on 14.6.77  defendants made an  attempt to take  possession illegally on  suit land and destroyed  the crop.

No

4. Whether on Onkarlal was  the husband of defendant  No. 1 i.e. Pujari of  Murti Bhawani Mata  Mandir?

Judgment not  necessary

5. Whether after Onkarlal  suit land remained in  possession of defendant  no. 1 in the capacity of  Pujari ?

Judgment not  necesssary

6. Relief and cost ? Suit dismissed  with cost”

The suit was dismissed by the Trial court on 11 April

1981  on  the  ground  that  the  plaintiff  had  failed  to  prove

possession over the land in dispute. Both the first appeal as

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well as the second appeal were dismissed on 23 March 1982 by

the District Judge and on 5 May 1984 by the High Court.

After the disposal of the second appeal, Geetabai filed

an  application  under  Section  144  of  the  Code  of  Civil

Procedure, 1908 (“CPC”) for the restoration of possession of

the disputed land and for awarding mesne profits, before the

Judge, Civil Court, Class I, Sardarpur2.

The application was dismissed on 24 August 1998 by the

executing  court.  The  appeal  filed  before  the  Additional

District Judge by the first respondent was allowed and the case

was remanded back to the executing court. The appellant filed a

second appeal before the High Court which was dismissed in

limine  by  the  impugned  order  dated  3  December  2004  on  the

ground that no substantial question of law arose.

Assailing the judgment of the High Court, the appellant

submits that the provisions of Section 144 of the CPC were not

attracted. The Additional District Judge was, it was urged, not

justified in remanding the proceedings back to the executing

court.  Learned counsel appearing on behalf of the appellant

submits that the plaintiff was not placed in possession by the

court under any decree or order which was ultimately reversed

on the dismissal of the suit for permanent injunction.  In the

circumstances, Section 144 was not attracted.  Learned counsel

submitted that in order to attract the application of Section

144, three conditions must be satisfied:

(i) Restitution sought must be in respect of a decree or

2  M.J.C. No. 21 of 1986

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order which has been varied or reversed;

(ii) The party applying must be entitled to the benefit

of restitution;

(iii)  The relief which is claimed must be consequential

to the reversal or variation of the decree or order.

In the instant case, it has been urged that none of these

conditions were satisfied. Moreover, even if it were to be

assumed that the plaintiff had taken possession of the disputed

land during the pendency of the suit, it was urged that an

application under Section 144 would not lie.  Moreover, it was

urged that the Trial court did not decide the question as to

whether the respondent was in possession of the disputed land

as is evident from the fact that on issue No. 5 no finding was

returned.

On the other hand, learned counsel appearing on behalf of

the respondent supported the judgment of the first appellate

court and the High Court by submitting that it was the case of

the first respondent that the appellant had taken possession of

the suit land after the order of injunction was passed at the

interlocutory stage.  Hence, it was urged that once the suit

for injunction was dismissed, it was open to the defendant to

apply for restitution under Section 144, CPC.

In  evaluating  the  rival  submissions,  it  would  be

necessary to advert to the provision of section 144 of the CPC:

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

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in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to 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…….”

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.

In the present case, the interim order of the Trial court

did not require the defendant to hand over the possession to

the plaintiff. There was no decree or order of the Trial court

by virtue of which the appellant was given possession of the

property,  nor  did  any  decree  or  order  mandate  that  the

respondent hand over possession to the appellant.

In these circumstances, the provisions of Section 144,

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CPC were not attracted there being no variation or reversal of

a decree or order as contemplated by Section 144.

The remedy of the first respondent, if any, did not lie

in an application for restitution before the executing court

under Section 144, CPC. The executing court was justified in

declining to entertain the application under Section 144, CPC.

The order of the first appellate court which has been

affirmed by the High Court was unsustainable.

Accordingly,  we  allow  the  appeal  and  set  aside  the

judgment  of  the  High  Court  dated  3  December  2004.    The

application filed by the respondent before the executing court

shall stand dismissed.  No costs.

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

 ...…...….......………………........J.                                     (DR. DHANANJAYA Y. CHANDRACHUD)

…...…........……………….…........J.                        (HEMANT GUPTA)

NEW DELHI,  January 21, 2019

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ITEM NO.52               COURT NO.11               SECTION IV-A

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  2378/2006

(Arising out of impugned final judgment and order dated  03-12-2004 in SA No. 407/2002 passed by the High Court Of M.p At Indore)

MURTI BHAWANI MATA MANDIR REP. THROUGH  PUJARI GANESHI LAL (D) THROUGH LR KAILASH   Petitioner(s)

                               VERSUS

RAMESH & ORS.                                      Respondent(s)

    Date : 21-01-2019 This petition was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HEMANT GUPTA

For Petitioner(s) Mr. Alok Bhachawat, Adv. K.V. Bharathi Upadhayay, Adv.

                   Ms. Pratibha Jain, AOR                    For Respondent(s)

Mr. Harshvardhan Jha, Adv. Mrs. Yugandhara Pawar Jha, Adv. Ms. Mayuri Shukla, Adv.

                   Mr. Abhishek Chaudhary, AOR                      

         UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed  reportable

judgment.

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

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)