1999 PLP 1432 (CLC)

4. Section 144 of the C.P.C. is reproduced as follows:‑‑

"

144. Application for restitution.‑‑‑ (1) Where and in so far as a decree is varied or reversed the Court of first instance 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 such part thereof as has been varied or reversed; 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 or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection? (1)?

5. The main emphasis of his arguments was with respect to the entitlement of the petitioner over this property as a co‑sharer and which status according to him the respondent did not possess and there was also no allegation that the petitioner was in possession of any area in excess of his share.

6. This argument has been controverted by the learned counsel for the respondents. According to whom restoration of possession was a right of the respondent and the Courts below were duty bound to restore the respondent in possession of the property from where he was disturbed in view of the execution of the decree of the Court.

7. Section 144 of the Civil Procedure Code, codifies the principles of restitution and is based on the principle enunciated by Lord Carins of the Privy Council in the case (1871) LR 3 P. C. ‑465 where he observed:‑ ' "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors." Therefore, any benefit which is refundable and returnable to a party entitled to such benefit through restitution upon the variance or reversal of a decree can take the benefit of principle of restitution reflected in section 144 of the C.P.C. It is almost akin to the provisions of section 47 of the C.P.C. and both these sections prohibit the filing of separate suits.

8. The main conditions which are to be fulfilled for invoking the provisions of section 144, C.P.C. are; (a) that the restitution sought must be in respect of the decree which has been varied or reversed; (b) the party applying for restitution should be entitled to a benefit under a reversing or varying decree; and (c) the .relief claimed must be properly consequential on the reversal of variation of the decree.

9. The main consideration is whether the person has made the application under section 144 of the C.P.C. was entitled to the restitution.

10. According to the learned counsel for the petitioner, the petitioner is in occupation of only so much of land which" falls within his share and he is entitled to retain its possession. That in case the occupied land were in excess of the share the principle of restitution would apply. In this case there is no variation or reversal of the decree. The case when it was remanded by the first Court as withdrawn after petitioner had acquired the possession of his share. It is not denied that the petitioner was in occupation of land corresponding to his share. In case he was in possession of any parcel of land beyond his share the principle of restitution will get attracted.

11. To say that restitution is the rule even if a respondent was in possession within his own right amounts to over‑stretching the principle. The word "entitle" used in section 144 of the C.P.C. limits the use of this procedural section. And if it is established that a person invoking provisions of section 144 was not entitled to the return of the property for various reasons, the principle will not be invoked.

12. When a person was found to be trespasser, he was held not to be entitled to restitution against the person who took the property in possession through a lawful decree. AIR 1941' PC 128.

13. The learned counsel appearing on behalf of the respondent has referred to the following cases:‑‑ AIR 1935 PC 12 and AIR 1922 PC

269. Both these cases deal with different set of facts. In the case PLD 1948 PC 100 the principle laid is well‑explained by the illustration:‑‑ "Where in execution of his decree A realizes the arrears of rent from the tenants of the shops belonging to the judgment‑debtor B and subsequently, the decree is reversed in appeal, in the restitution proceedings B is entitled to get back only the actual sum realized by A from the tenants and not the full amount of the arrears of rent claimed by B from each of the tenants." In the AIR 1922 PC 269 a judgment‑debtor was asked to refund the deposit made by an auction purchaser when the sale was set aside before claiming restoration of possession. The relevant portion of the judgment in this connection is reproduced below:‑‑ "Held, the auction purchasers were entitled to repayment of the deposit paid into Court as a condition precedent to their handing over possession to the judgment‑debtors. As regards the sums paid by the auction purchasers to clear off the bonds charged on the property they intended to purchase, it is an optional payment, made without any order of the Court and as it entitles them to stand in the shoes of holders of the bonds, it entails no hardship and these payments cannot be made a condition of restoration to the judgment‑debtors. "

14. In the case AIR 1941 PC 128 the following principle was held:‑? "Where the persons who have been dispossessed are found to be trespassers and the persons in subsequent possession are lawfully in possession by virtue of a valid lease in their favour, it is not necessary for the ends of justice that the trespasser should be restored to possession though they may succeed in a suit for possession."

15. The word "entitle" has been defined to the case Schmidt v. Gibbons 101 Ariz 222, 418 p.2d 378, 380 and it means to entitle is to give a right or legal title to, to qualify for; to furnish with proper grounds for seeking or claiming.

16. In this case the respondent has not been able to establish his legal title to the property nor a right over it. He was only holding the property as a co?sharer which the present petitioner was able to take back through the execution of a decree in his own suit which suit he had later withdrawn after it was? remanded. There is no challenge to the title of the petitioner. Therefore, the conclusion is that although the case was remanded and thereafter withdrawn by the present petitioner the respondent was not entitled to the restoration of the property because he was not entitled to it on the basis of any legal title or right. This revision petition, therefore, succeeds and the order impugned passed by the D learned District Judge, Sargodha on 18‑6‑1995 is set aside. Whereas the order of the learned Civil Judge, dated 13‑10‑1992 is upheld. M.B.A./N‑153/L????????????????????????????????????????????????????????? Petition accepted.