RULES OF RESTITUTION

ASSIGNMENT SUBMITTED TO
SNIL
ON
PROJECT AND REPORT PRESENTATION
BY
ANOUSHKA MISHRA
BA.LLB(H) 4TH YEAR/8TH SEMESTER

BATCH:2018 -2023

REG NO:1841802021

SOA NATIONAL INSTITUTE OF LAW

(Deemed to be university)

DECLARATION
I, Anoushka Mishra hereby declare that this project has been done by me. The words used in
it is all mine and there is no plagiarism involved in it.

Anoushka Mishra

BA.LLB(H) 4th YR

STUDENT
 PREFACE

I would like to thank my Dean Mr SAK AZAD for giving me opportunity to do this project. I
would also like to thank my Mentor MRS.ANNAPURNA PATTNAIK for her guidance in
this project and giving me such an interesting topic to work on. I would also like to thank my
parents for providing me with the materials required for the completion of this project.

THANKING YOU

ANOUSHKA MISHRA

BA.LLB(H) 4th year

 CONTENTS:
CHAPTER 1: INTRODUCTION

 NATURE AND SCOPE OF RSTITUTION

 NATURE OF S.144 UNDER CPC
 REQUISITE CONDITIONS FOR APPLICATION OF RESTITUTION
 INHERENT POWER TO GRANT RESTITUTION UNDER SEC 155 CPC

CHAPTER 2: RESTITUTION IN DIFFERENT LAWS

CHAPTER 3: LEGISLATIVE PROVISIONS

 UNDER CPC
 UNDER SPECIFIC RELIEF ACT 1963
 UNDER HMA 1955
 UNDER INDIAN CONTRACT ACT 1872

CHAPTER 4: JUDICIAL ANALYSIS

 CASE LAWS UNDER CPC

 CASE LAWS UNDER SPECIFIC RELIEF ACT 1963
 CASE LAWS UNDER HMA 1955
 CASE LAWS UNDER ICA , 1872

CHAPTER 5: CONCLUSION
 ABSTRACT
The concept of restitution is a legal doctrine which plays a very important role is restoring the

benefit which by the erroneous judgment was given to the former decree holder but that

person is not the entitled person for the same. Therefore, the concept of restitution is in

existence in the Code under Section 144. Furthermore, not only giving the right decree is

important but the execution plays an important role too.

The concept of restitution is into active role when the subsequent suit is reversed in the

favour of person who sought for appeal then only restitution is possible but is it always

necessary that court will order for restitution? No, because the ultimate aim of the court is to

reach to the acme, i.e. the end of the justice and for that in the cases of Supreme Court, many

times it is opined that though the court is under obligation to order restitution but it is not

always depending from the case and circumstances.

As to why this doctrine is in existence? The answer goes in the rule of perfection. No one is

perfect and hence the courts. Even Lord Cairns stated that the primary duty over the judicial

hierarchy is to harm no one and not to injure the suitors and as a result the obligation first

goes to the court to enforce the justice by providing the entitled claim or benefit to the

entitled person. Moreover, this is to provide justice to every seeker and to stop the

unscrupulous activities and to do justice to the one suffered.

Moreover, restitution concept is applicable not only to the parties in question but as well to

legal representatives too because it is ultimately a bona fide action of the court. The doctrine

is not at all exhaustive and it also takes into consideration the limitation provisions so we can

never say the order of restitution is ultimate and it is also imposed with certain bars. An

unjust benefit is of none and is temporary too.

This research work will be dependent on Doctrinal Research and I will rely on all the
secondary sources such as articles, commentaries, precedents, books and research h papers

and the basic knowledge of the topic I have.

KEYWORD: restoration of benefit, justice, equity and good conscience, theory of

perfection.

SYNOPSIS

STATEMENT OF THE PROBLEM:

The whole project revolves around the basic dimensions of the concept of restitution which is

exercised after the reversal of the former decree. The subsequent research covers all aspects

relating to the process of the court as to how the court offers the order of restitution and

whether or not, the power is inherent with the court to abide by the aforementioned doctrine

or not. All issues hence are further elaborated in the main context.

RESEARCH QUESTIONS:

The legal rule of restitution throws up many questions like

(a) Is the power of the court discretionary or obligatory?

(b) Whether the party can relinquish the benefit?

(c) How Res judicata and restitution goes parallel to each other?

And there are many too interrogatives which are dealt in the subsequent text taking into

context with the literature.

OBJECTIVE AND SCOPE OF PROJECT:

The project made tried to cover the legal consequences after the erroneous judgment. With

this regard only the concept of restitution emerges. In the leading cases too, the concept is
generally highlighted as our judiciary even at the lower and higher lever faces certain

discrepancies as result the end of justice can never be received and hence doctrine plays a

vital role as the principle of equity too promotes justness and fairness, so the benefit

restoration will be only possible once the issues are reflected and such former order is held as

erroneous.

RESEARCH METHODOLOGY ADOPTED:

In the text further, the research methodology adopted is ~doctrinal approach of research

standards. The focus was made primarily on the library research on basis of the secondary

work of different authors. Moreover, the strategy adopted goes genera to particular i.e.

deductive scheme are applied.

PROBABLE OUTCOME:

With the completion of the research, it is made visible all the solutions to the project

problems as also stated few in the above text. Moreover, the concept of restitution is defined

in Section 144 of the Code which does not cover all maters and hence the illustrative

characteristics for the application of restitution are also discussed.

 INTRODUCTION
Restitution is an ancient institution which has had an established position in the history of law
and justice. It has its historical origin in the middle Ages and can mainly be found in the
Germanic Common laws. The expression ‘Restitution’ is not defined under the Civil
Procedure Code. Restitution in relation to civil procedure code means giving back or
restoring to the person who is entitled to the benefit from the other party who has wrongly
received such benefit under an erroneous decree or order of the court. Res judicata is a Latin
term that denotes ‘matter already adjudged by the court cannot be raised again’. These
doctrines are not new concepts and are only given statutory recognition under Section 144
and Section 11 of CPC. When a party has filed an application for restitution and it has been
dismissed by the Court, res judicata becomes applicable. Restitution in the literal term means
to put back or restore anything which has been taken from another in an unfair manner. In
other words, the return or restoration of something which has been lost or stolen to the
rightful owner of that thing1 . The Merriam Webster dictionary defines restitution as a legal
action serving to cause restoration of a previous state.

Evolution

 Any civilized system of law is bound to provide remedies for cases of what has been called
unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or
some benefit derived from, another which it is against conscience that he should keep.

 Restitution is an ancient institution which has had an established position in the history of
law and justice. It has its historical origin in the middle ages and can mainly be found in the
Germanic Common laws. Oxford English Dictionary defines ‘restitution’ as “an act of
restoring a thing to its proper owner”.

 The word in its etymological sense means ‘restoring to a party on the modification,
variation or reversal of a decree or order, what has been lost to him in execution of decree or
order of the court or in direct consequence of a decree or order’.

To cite Black’s Law Dictionary, the term has been defined in three senses, viz. (1) return

or restoration of some specific thing to its rightful owner or status; (2) compensation for

benefits derived from a wrong done to another; (3) compensation or reparation for the loss
1
Shorter Oxford English Dictionary (1990) vol 2, 1811-12.
caused to another. As far as Indian Code of Civil procedure is concerned, though the term

“restitution” has not been defined in the Code, it has got its statutory recognition in the

section 144.

Doctrine of restitution
The doctrine of restitution implies to brings the aggrieved party to the original position where
the

benefit of the erroneous judgment of the court is received by the other party who was not
entitled

to such benefit. Restitution is not a new concept and Section 144 merely gives statutory

recognition to this principle. Section 144 of CPC deals with the application for restitution.

Section 144 states that:

1. When a decree or order of the Court has been:

 varied/reversed in any appeal, revision or other proceedings;

 is set aside/ modified in any suit instituted for that purpose.

The Court that passed the decree/order will grant restitution on receiving an application of the

party entitled to the benefit.

NATURE AND SCOPE OF RESTITUTION

The ambit of the term ‘restitution’ is very wide and Section 144 of the CPC is not exhaustive
of the doctrine. The Court’s jurisdiction with regard to restitution can be exercised even when
a case does not strictly fall within the ambit of Section 144. Section 144 of the code
embodying the doctrine of restitution does not confer any new substantive right to the party
not available under the general law. The section merely regulates the power of the court in
that behalf. It is the paramount duty of all courts to ensure that they do no injury to any
litigant. The expression “the act of the Court” does not mean merely the act of the primary or
trial court or intermediate court of appeal but the act of the court as a whole from the lowest
court which entertains the matter to the highest court which finally disposes the case.
Moreover, the section is not exhaustive and, therefore, even if the case does not fall within
the strict term of Section 144 of the Code, it is always at the discretion of the Court to grant
relief of restitution. Further Since the object of the doctrine is to shorten litigation and to
afford speedy relief to the party adversely affected, and merely lays down a procedure, the
provision should be construed liberally. This has clearly been laid down in number of
Supreme Court’s cases like Kavita Trehan v. Balsara Hygiene Products Ltd., Gangadhar v.
Raghubar Dayal, State Govt. of A.P. v. Manickchand Jeevraj & Co. In Kavita Trehan’s
case the court para 16 says that “the Law of Restitution encompasses all claims founded upon
the principle of unjust enrichment” be it in equity or under any law. One more widening
provision is Section 151 of the CPC, under which the courts have inherent power to order
restitution even when the section 144 cannot be applied. There are several cases on this point.
One case is Ram Rattan v. Banarsi Lal in which Patna High Court set aside a sale on an
application under order 21, rule 90, but ordered the judgement-debtor, mesne profits under
Sec 151 from the decree-holder purchaser, for the period he was in possession. Extending the
scope and applicability of the section 144, the Allahabad High Court in Jogendra Nath
Singh v. Hira Shahu held that a case for restitution would fall within the purview of section
144, even when the decree is set aside in a separate suit, or where the court itself sets aside its
own ex parte decree. The view has now been firmly affirmed by the 1976 Amendment Act
which declared it in the clear terms that the restitution can be availed in cases where a decree
is set aside or modified in another subsequent suit filed in another court for that purpose.2

NATURE OF SEC 144 UNDER CPC

2
http://burnishedlawjournal.in/wp-content/uploads/2020/05/Critical-analysis-on-Restitution-by-Paras-Miglani-
Vanjul-Gautam.pdf
Section 144 entirely governs on the premises of equity. It is merely an enabling section to do
justice to the parties in the most possible manner. Though restitution has been embodied
under Section 144, the power of the court to grant restitution is equally derivable from its
inherent powers.3 The proceedings of restitution are considered as execution proceedings. 4
When an application for restitution has been dismissed, res judicata applies and a fresh
application is not maintainable unless the dismissal was on technical grounds.5

Under Section 144(2), if the remedy for restitution can be claimed by making an application
under Section 144, then a separate suit to claim the remedy shall be barred. Hence, a party
can only file an application for restitution and cannot institute a separate suit if the
circumstances are covered by section 144 of the code 6 . Restitution is in fact an execution of
the new decree. It is only its connection with the original decree that the term restoration
comes into picture. Over an application of restitution, the Special court determined the
amount payable by plaintiff to the defendant on the premise that the defendant would have
retained the bonds till the date of maturity in spite of the evidence that the defendant would
have further sold the bonds in open market only and the value of bonds could be determined
on the basis of the market price of the bonds on the date when they were sold by plaintiff to
third parties. The Hon’ble Court rightly held that the special court has erred in determining
the amount payable on such premises. The Plaintiff cannot be burdened to pay what the third
parties have gained by selling the bonds further. The Court rightly held that “It is also one of
the established propositions that in the context of restitution the court should keep under
consideration not only the loss suffered by the party entitled to the restitution but also the
gain, if any, made by other party who is obliged to make restitution” 6 The court has rightly
pointed out the nature of restitution saying that it is an expansive power granted to the courts
which should be exercised to give equity, fairness and justice to both the parties. The court
must bear in mind the hardships that may be faced by the party obliged to make restitution.
The nature of proceeding under Section 144 is execution proceedings. The process to get an
order or decree into effect is called as execution proceedings.

REQUISITE CONDITIONS FOR THE APPLICABILITY OF

RESTITUTION
3
Kavita Trehan and Another v Balsara Hygiene Products ltd. [1994] 5 SCC 380.
4
MahijibhaiMohanbhaiBarot v Patel ManibhaiGokalbhai And Ors[1965] 6 GLR 901.
5
C.K. Takwani, Civil Procedure with Limitation Act, 1963 (8thedn, Eastern Book Company 2017) 732.
6
The Code of Civil Procedure 1908, s 144(2).
  The restitution sought must be in respect of that decree or order which had been
varied or reversed;
 The applicant has lost, or been deprived of, something by reason of the decree or
order which has been subsequently varied or reversed;
 The party applying for restitution must be entitled to a benefit under a reversing
decree or order;
 The relief claimed must be properly consequential on such variation of the decree or
order; and
 The applicant must be a party to the litigation which has terminated according to law.
If the aforesaid conditions are satisfied, it gives no choice or discretion to the Court,
and the only course it has to follow is to order restitution to the party which had
suffered loss on account of the erroneous decree or order.
 Section 144, Civil Procedure Code, imposes no limitations on the rights of the
judgment-debtor to get back the benefit, to which he is entitled under the appellate
Court’s decree, which has reversed or varied the trial court’s decree. On a perusal of
 S. 144, it is obvious that the question whether the balance of convenience is in his
favour or not, is irrelevant for the purpose of granting restitution.
 Section 144 obviously consists of two parts. The first part postulates the variation or
reversal of a decree or an order in an appeal. The second part is more important.
Restitution can be granted on the application of any party entitled to any benefit by
way of restitution, and it has to be determined by the court granting restitution that the
party who has given the application is entitled to the benefit of restitution.
 Such an inference cannot be drawn in favour of a person who is a mere trespasser.
Where the lower appellate court as well as the High Court held that the sale deed in
favour of the appellant was null and void and no rights were conferred on him by
virtue of the same, the appellant was a mere trespasser and he did not fulfil the second
condition of section 144, C.P.C.

 In S.N. Banerji v. Kuchwar Lime and Stone Co. Ltd. 7, it was held that where the
persons who have been dispossessed were found to be trespassers and persons in
subsequent possession were lawfully in possession by virtue of a valid lease in their
favour, it was not necessary for the ends of justice that the trespasser should be

7
(1942) 44 BOMLR 324
 restored to possession though they might succeed in a suit for possession. That case
was followed in Mahaden Prasad v. Calcutta Dyeing and Cleaning Co.8

SECTION 151 INHERENT POWERS TO GRANT

RESTITUTION

Sec 151. Saving of inherent powers of court. -

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the

8
AIR 1961 Cal.70
court to make such orders as may be necessary for the ends of justice, or to prevent abuse of

the process of the court

Explanation:

• It is a saving clause and only gives legislative recognition of an age-old and well
established principle that every court has inherent power to do that real and

substantial justice between the parties for the administration of’ which alone it exists.

It does not confer any substantive right on parties but is meant to get over the

difficulties arising from rules of procedure.

• Section 151 gives no right to a party to make an application. It gives power to the

court to pass such orders as it thinks fit. Section 151 is really intended to prevent

courts from being rendered impotent by any omission in the Code; but it is not

intended to override the main enactment of the law.

• The court has inherent powers, in order to advance the cause of justice and not to

allow justice to be defeated, to issue orders in the nature of even injunctions.

Therefore, it cannot be said that the court has no power to issue stay of a suit under its
inherent powers unless the case clearly falls within the four corners of Order XXXIX,

Rules 1 and 2.

• The Code of Civil Procedure is not exhaustive and S. 151 does not confer any new

powers but only makes statutory recognition of the inherent power of the court to do

certain things ex debito justitiae (to act as justice demands). It is in the ends of justice

to avoid needless expense and inconvenience to

• Parties So, the court will not refuse relief merely because the application there for is

made under a wrong section or because there is some technical defect.

• The abuse of the process of the court may be the result of an act of courts itself

(default its officers) or may be done by the party (misrepresentation). In all such cases
the court is empowered to remedy the wrong.

• The inherent powers exercised under S. 151, C.P.C. are discretionary. In considering

the question of propriety in invoking the power, the court should take into account

several matters, some of which are the complexity of the question involved,

availability of a more complete and efficacious remedy by means of a suit and the

apparent justice of the claim. These are not exhaustive but merely illustrative. They

would vary according to the facts and circumstances of each case. No hard and fast

rule can be laid down.

• Where the averments in the application did not make out a case as to how the exercise

of the inherent power of the court was necessary for the ends of justice or to prevent

abuse of the process of the court and the applicant did not come to the court with

clean hands and had suppressed the facts and the case involved complexity of facts

and the justice of the claim was adverse to the applicant, it was held that there was no

case for the exercise of inherent powers in favour of the applicant.

• Where the possession has been taken forcibly by a landlord/defendant during the

pendency of the proceedings, i.e., when the application for temporary injunction

restraining landlord/defendants from interfering with possession is dismissed by the

trial court and before filing the appeal, even though S. 144 of the Code of Civil

Procedure may not strictly apply, the court in exercise of its inherent jurisdiction

under S. 151 can grant restitution. ‘By invoking the inherent jurisdiction, the Court

would be justified to do justice and put back the parties in the same position in which

they were, but for the order of the trial court.

• The Court has power and jurisdiction under section 151 of the Code to grant police

help to implement its order of injunction.

 DOCTRINE OF RESTITUTION WITH RESPECT TO
RESJUDICATA AND REVISION
If an application is made before the court and that application is subsequently dismissed the

doctrine of res judicata shall apply and the subsequent application for restitution shall be
barred and shall not be maintainable but if such dismissal was on the ground of some

technical discrepancies then res-judicata shall not bar another application to be produced

before the court for seeking restitution.

Doctrine of restitution with respect to revision:

An order under Section 144 is appealable

therefore no revision is maintainable under the court of law but if an order under section 144

does not fall within four corners of Section 144 then a revision can be made. When we

emphasize upon the term “Court” as stated, it is to be seen that it includes the primary or trial

court or intermediate court of appeal to the higher final court which ultimately disposes off

the case.

In the case of Chinnammal v. P. Arumugham9, the court held that the aim or motive of this

doctrine is to lessen the litigation and to afford speedy remedy to the party adversely affected

and therefore the proviso in Section 144 is construed liberally.

The doctrine is only ordered by the court provided three conditions are mandatory to be

satisfied. Includes:

1. The restitution asked must be in respect to the prior decree which had been reversed

or modified.

2. The party who is applying for restitution must be appropriately entitled for benefit

after the reversal or modification of decree and lastly,

3. The relief claimed must be properly consequential on the reversal of decree or order.

These tree aforementioned conditions implies that firstly there should be erroneous judgment

and the benefit out of such erroneous judgment has been received by one party to the suit and

later the erroneous judgment has been reversed or varied or modified. If such conditions are
satisfied, the court is bound to order restitution. Therefore, the court is having this inherent

9
1990 AIR 1828
power not in nature of discretion but obligatory.

Application of Restitution lies with the court. The court which had passed the decree or made

the order has the ultimate say that to whom the restitution may be granted.

Coming to the concept of res-judicata, it is applicable on the execution proceedings i.e.,

restitution. But is such application of restitution is dismissed on some technical ground, a

fresh application can be filed and comes into play after this. No relief can be claimed by

bringing a separate suit where the restitution could be claimed by an application for such

relief.

Limitation over Section 144: An application of restitution under section 144 is an application

for execution of a decree and is the limitation period as prescribed is 12 years and it will start

from the date of appellate decree or order.

The Decree under section 2(2) of the code is appealable and has been expressly declared to be

a decree under section 144. As it is appealable no revision lies against such orders. But where

the order does not come in the ambit of section 144, a revision is maintainable and is said to a

“decided case” under section 115 of the code of Civil Procedure.

Even if the decree is executed or implemented, proceedings for restitution under Section 144

of the Code will not become infructuous. It is after the decree is executed and enforced then

the question of restitution arises. Therefore, it is not open to the court to dispose off an
application for restitution that the order has already been given effect and nothing requires to

be made. However, it is open to the party to show that “restitution will be contrary to the real

justice of the case”.

RESTITUTION IN DIFFERENT LAWS

RESTITUTION UNDER HINDU MARRIAGE ACT 1955

What Is Restitution Of Conjugal Rights?

Conjugal Rights Restitution is a legal entitlement that is based on Section 9 of the Hindu
Marriage Act. The aggrieved party may apply to the district court for restitution of conjugal
rights if the husband or wife is withdrawn from the other partner's company without valid. In
simple terms, the restitution of conjugal rights is regaining the companionship of a spouse
who has abandoned the relationship for no apparent reason.

Who Can Seek Relief?

When either the husband or wife has withdrawn from the other's society without sufficient
justification, the aggrieved party may petition the district court for restitution of conjugal
rights, the court has to examine if the petition is true and there is no legal reason why the
application should not be granted the restitution of conjugal rights.

Why Is The Relief Given?

The legislature, in its wisdom, has provided a statutory remedy for either spouse to reclaim
the company of the spouse who has left the company without good reason, with the objective
of protecting the sanctity and legality of the institution of marriage.

When & Where To File The Petition?

The district court's jurisdiction is asserted whenever a husband or wife is excluded from the
other's company without good reason. For Restitution of Conjugal Rights, the Principal Judge
of the Family Court would be invoked under Section 19 of the Hindu Marriage Act. Every
petition filed under the HMA must be filed in the Family Court of the original civil
jurisdiction where:

 The marriage was solemnized;

 The respondent resides;

 The parties to the marriage last lived together; and

  If the wife is the petitioner, where she has been residing on the date of filing the
petition.

Procedure And Steps For Restitution Of Conjugal Rights:

Step 1: File the Petition;
Step 2: File the Reply;
Step 3: Present the Petitioner's Evidence;
Step 4: Present the Respondent's Evidence;
Step 5: Present the Arguments;
Step 6: Present the Judgment & Decree.

RESTITUTION UNDER SPECIFIC RELIEF ACT 1963

Specific Restitution of Property

The third kind of judicial remedy is the specific restitution of property. It is granted where the
plaintiff has been wrongly dispossessed of his lands and goods. Thus, a person who is
wrongfully dispossessed of immovable property, or of some specific movable property, is
entitled to recover such property. When one is wrongfully dispossessed of his movable or
immovable assets, the court may order that the specific belongings must be restored back to
the plaintiff.

Illustration: Action for ejectment, the recovery of chattels with the aid of an action for
detinue etc. According to section 6 of the Specific Relief Act, 1963 a person who is
wrongfully dispossessed of immovable assets is entitled to get better the immovable assets.
According to section 7 of the Specific Relief Act, 1963 someone who is wrongfully
dispossessed of movable assets is entitled to recover the movable property.

Restitutionary Remedies: These are also meant to restore the plaintiff to a position of
“wholeness”, as close as possible to their state before the tort occurred. These can include:
Restitutionary damages: These are similar to damages, except that they are calculated based
on the tortfeasor’s gain rather than the plaintiff’s losses.

Replevin: Replevin allows the victim to recover personal property that they may have lost
due to the tort. For example, they may recover property that was stolen. Replevin can be
coupled with legal damages in some cases.

Ejectment: This is where the court ejects a person who is wrongfully staying on real property
owned by the plaintiff. This is common in instances of continuing trespass.

Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on
their real property, sell the property, and forward the proceeds to the tort victim.

RESTITUTION UNDER INDIAN CONTRACT ACT 1872

The doctrine of Restitution in Indian Contract act

Section 65 of the Indian contract act 1872 mainly deals with the doctrine of restitution and it
relates to the obligation of the person who has received some advantage under void
agreement or contract. This section starts from the very basis that there being an agreement or
contract and if there was no agreement or contract then the doctrine of restitution cannot
come into play. This doctrine is based on a very common rule of consideration which means
that a person pays consideration only when he gets something in return.

Provisions of Section 65 apply only when an agreement at a subsequent stage is discovered to

be void or when a contract becomes void later on by one person or the other. But Section 65
will never come into play if the contract was void-ab-initio .i.e void from the very beginning.
Supreme Court of India in the case of Kujiu Collieries limited v/s Jharkhand mines ltd held
that an agreement which was discovered to be void at a later stage will invite Section 65 into
the picture and in such a case an advantageous person is bound to restore the disadvantaged
party.

Doctrine of restitution includes the key points as follows

One party has entered into a contract with another for consideration.

There was some consideration involved in the said contract.

Both parties were competent to enter into a contract

Thereafter one party failed to perform his part of the contract or the contract became void due
to any unforeseen condition.

Now the party which has paid any consideration as the advance is entitled to recover the same
from the other party and other party is not entitled to receive an unfair advantage over it.

LEGISLATIVE PROVISIONS
Section 144 CPC: APPLICATION FOR RESTITUTION
(1) Where and in so far as a decree 1[or an Order] is 2[varied or reversed in any appeal,
revision or other proceedings 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 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 1[or Order] or 3[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
4[consequential on such variation, reversal, setting aside or modification of the decree
or Order.]

5[Explanation.-For the purposes of sub-section (1) the expression "Court which

passed the decree or Order" shall be deemed to include,-

(a) where the decree or Order has been varied or reversed in exercise of appellate or
revisional jurisdiction, the Court of first instance;

(b) where the decree or Order has been set aside by a separate suit, the

Court of first instance which passed such decree or Order;

(c) where the Court of first instance has ceased to exist or has ceased to have
jurisdiction to execute, it, the Court which, if the suit wherein the decree or Order was
passed were instituted at the time of making the application for restitution under this
section, would have jurisdiction to try such suit.]

(2) No suit shall be instituted for the pr-pose of obtaining any restitution or other
relief which could be obtained by application under sub-section (1).

Section 7 in The Specific Relief Act, 1963

Recovery of specific movable property.—A person entitled to the possession of specific
movable property may recover it in the manner provided by the Code of Civil Procedure,
1908.
 Explanation 1.—A trustee may sue under this section for the possession of movable property
to the beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2.—A special or temporary right to the present possession of movable property
is sufficient to support a suit under this section.

Section 9 of the HMA, 1955 talks about restitution of conjugal rights that states that
in a situation where a husband or wife withdraws from the society of the other spouse
without giving them any reasonable cause then the other spouse has the remedy to file
a petition before a district court for restitution of conjugal rights. If the court is
satisfied that the statements presented in the petition are true and there is no legal bar
in granting the remedy of restitution then the court may pass the decree of restitution
of conjugal rights.

This Section states that the court may grant a decree for restitution of conjugal rights
under the following conditions:
1. When either of the party without giving any reasonable cause has withdrawn from the
society of the other spouse;
2. The court is satisfied with the fact that the statements made in the petition are true;
3. There is no legal ground on which the petition shall be declined.

Under this Section, the term ‘society’ means cohabitation and companionship that a
person expects in a marriage. The term ‘withdrawal from society’ means ‘withdrawal
from a conjugal relationship’.

Section 65 of the Indian contract act 1872 mainly deals with the doctrine of restitution
and it relates to the obligation of the person who has received some advantage under
void agreement or contract. This section starts from the very basis that there being an
agreement or contract and if there was no agreement or contract then the doctrine of
restitution cannot come into play. This doctrine is based on a very common rule of
 consideration which means that a person pays consideration only when he gets
something in return.

Provisions of Section 65 apply only when an agreement at a subsequent stage is

discovered to be void or when a contract becomes void later on by one person or the
other. But Section 65 will never come into play if the contract was void-ab-initio .i.e
void from the very beginning. Supreme Court of India in the case of Kujiu Collieries
limited v/s Jharkhand mines ltd held that an agreement which was discovered to be
void at a later stage will invite Section 65 into the picture and in such a case an
advantageous person is bound to restore the disadvantaged party.

Rule 32 Order XXI of Code of Civil Procedure 1908 "Decree for specific performance
for restitution of conjugal rights, or for an injunction"

(1) Where the party against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of
obeying the decree and has wilfully failed to obey it, the decree may be enforced 18[in the
case of a decree for the restitution of conjugal rights by the attachment of his property or, in
the case of a decree for the specific performance of a contract or for an injunction] by his
detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has
been passed is a corporation, the decree may be enforced by the attachment of the property of
the corporation or, with the leave of the Court by the detention in the civil prison of the
directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for 11[six
months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied
to have the attached property sold, such pro be sold; and out of the proceeds the Court may
award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if
any) to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the
same which he is bound to pay, or where, at the end of 11[six months] from the date of the
attachment, no application to have the property-sold has been made, or if made has been
refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not
been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid,
direct that the act required to be done may be done so far as practicable by the decree-holder
or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the
act being done the expenses incurred may be ascertained in such manner as the Court may
direct and may be recovered as if they were included in the decree.

JUDICIAL ANALYSIS

CASE LAWS RELATING TO RESTITUTION:

The Lordship of the Privy Council said: “It is the duty of the court under section 144 of the
Civil Procedure Code to place the parties in the position which they would have occupied for
such decree or such part thereof as has been varied or reserved. Nor indeed does this duty or
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.”

Landmark Cases

1. Jai Berham v. Kedar Nath Maewari10: A sale in execution of a decree as set aside on the

grounds that the sale certificate comprised property different from that which was attached.

The property was purchased by a stranger to the decree, and the price paid by him in to

court was applied towards satisfaction of the decree. The judgement-debtor applied for

possession

2. Amba Lal v. Ramgopal11: A, in execution of a money decree, brought property to sale as

of his judgement –debtor and purchased himself. B and C who held decrees against the

same judgement-debtor, applied for rateable distribution. A, therefore, paid the sale

proceeds into court and they were rateably distributed between A, B and C. Co-sharers of

the judgement then obtained a decree exempting part of the property from the operation of

the sale. The amount available for rateable distribution was, therefore, reduced and A was

entitled to a proportionate refund from B and C.

3. S. Prabhavathi vs Rohini Kilaru and Anr12: The Supreme Court while observing that s

144 of CPC incorporates only a part of the general law of restitution and not exhaustive,

laid down as under: “The jurisdiction to make restitution is inherent in every court and will

10
(1923) 25 BOMLR 643
11
AIR 1933 All 218
12
2006 (5) ALD 606, 2006 (5) ALT 264
be exercised whenever the justice of the case demands. It will be exercised under inherent

powers where the case did not strictly fall within the ambit of Section 144, Section 144

opens with the words "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 in any suit instituted

for the purpose...."

4. Jamaluddin v. Mirza Quader Baig13: It was held that for restoration of possession to the

tenant, who was dispossessed by the landlord from the suit premises forcibly in violation

of the orders of interim injunction, there is no necessity of filing a petition under Section

144 of CPC. The Court can restore possession in exercise of its inherent powers under

Section 151 of CPC. Similarly,

5. Sujit Pal v. Prabir Kumar Sun: It was held that when the plaintiff in a suit for permanent

injunction and declaration of tenancy was forcibly dispossessed in violation of the interim

injunction, the civil Court can invoke its inherent power to grant temporary mandatory

injunction by directing the police to restore possession. The inherent jurisdiction to pass an

order in restitution can be exercised by a persona designate entrusted with functions of a

court as for example by a district munsiff to whom the decree is transferred for execution

under s 66 of the Madras Village Courts Act 1889.

CASE LAW UNDER SPECIFIC RELIEF ACT 1963

Wood v Rowcliffe : In this case, a person leaving abroad leaves his furniture under the care
of his friend. The friend is the trustee of the articles and is bound to return them in the same
condition when demanded.

13
1995 (1) ALT 115
CASE LAWS UNDER HMA 1955:

In Smt. Saroj Rani vs. Sudarshan Kumar Chadha 14, the constitutional validity of Section 9
of the HMA was questioned before the Hon'ble Supreme Court. The Hon'ble Supreme Court
ruled that conjugal rights, i.e. a husband or wife's right to be in the company of the other
spouse, are not a legal authority in India. Divorce is a legal right that is embedded in the
institution of marriage.

The Hindu Marriage Act, Section 9, includes sufficient safeguards to prevent it from
becoming a tyranny. It also decided that Section 9 of the Act does not violate Article 14 or
Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in
the aforesaid Act is viewed in its correct context and the mode of execution in cases of
disobedience is considered. It overturned the decision of the Andhra Pradesh High Court.

In Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019, a new challenge to the
constitutional validity of Section 9, HMA was filed before the Hon'ble Supreme Court. The
Hon'ble Supreme Court's judgments in Justice KS Puttaswamy vs. Union of India, 2017 10
S.C.C. 1, Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1, and Joseph Shine vs.
Union of India, (2019) 3 SCC 39, where the Hon'ble Supreme Court declared the provisions
of laws to be unconstitutional, are likely to have an impact on the outcome of this case.

CASE LAWS UNDER INDIAN CONTRACT ACT 1872:

Section 65 is applicable only when an agreement was valid when it was entered into and
became void only at a future date. Moreover if the agreement was entered into between a
major person being the plaintiff and the minor defendant in this case then doctrine of
restitution will not be applied, this was held in the case of Mohiri Bibi v/s Dharmodass

14
1984 AIR 1562
Ghosh but the scenario will be different if minor has misrepresented his age and then he can
be enforced by the court to return the benefit.

In another case Bank of Rajasthan Ltd v/s Sh Pala Ram Gupta it was held that an agreement
or contract which was void and illegal from the very beginning can never apply the
provisions of this doctrine.15

CONCLUSION
The doctrine of restitution as envisaged under the CPC is an enabling provision in
consonance with the principles of equity and justice. Section 144 together with section 151
covers almost all such cases and ensure that a person should not be allowed to enjoy a benefit
derived pursuant to an order/judgment of a court if such order/judgment is ultimately finally

15
https://blog.ipleaders.in/what-is-the-doctrine-of-restitution/
not sustained. In such cases, it is generally the aggrieved party who ask the court to grant
order of restitution. But, the he Court can also suo motto give an order of restitution
whenever it thinks fit in the interest of justice. For example, in Jamaluddin v. Mirza Quader
Baig, the Court held that it can restore possession in exercise of its inherent powers under
Section 151 of CPC and there was no necessity of filing a petition under Section 144 of CPC.
There is no dearth of cases where the court agreed to apply general principles of restitution
even outside the scope of S.144. Extending the scope and applicability of the section 144, the
Allahabad High Court in Jogendra Nath Singh v. Hira Shahu held that a case for restitution
would fall within the purview of section 144, even when the decree is set aside in a separate
suit, or where the court itself sets aside its own ex parte decree. The scope of the provision is
wide enough so as to include therein almost all the kinds of variation, reversal, setting aside
or modification of a decree or order. Section 144 tries to restore the aggrieved party in the
original position as far as possible. But, wherever it is impossible to restore the aggrieved
party to the earlier position or undo the effect of a wrong order, the court can simply choose
to not disturb its earlier order.

REFERENCES
Text Sources

 The Code of Civil Procedure, 1908

 Takwani C.K., Civil Procedure (Eastern Book Company, Lucknow, 2003)
Other Web Sources

 https://www.lawteacher.net/free-law-essays/criminal-law/restitution-under-cpc.php
 http://lawtimesjournal.in/restitution-under-the-civil-procedure-code/#_edn8
 https://blog.ipleaders.in/restitution-and-res-judicata/
 http://www.legalservicesindia.com/article/2140/Restitution-W.r.t.-to-Civil-
ProcedureCode-1908.html