1. The petitioner in this Civil Revision Petition is the plaintiff in O.S No. 264 of 1987 on the file of the District Munsif, Sullurpet. He filed the suit for a permanent injunction restraining the defendants from interfering with the possession of the suit premises. He has filed an application in I.A No. 286 of 1987 along with the suit for the grant of temporary injunction in which an ex parte temporary injunction was granted. But on 18-4-1988 the Court dismissed the petition I.A No. 286 of 1987 for temporary injunction, on the ground that though the plaintiff is in possession of the suit premises, he failed to prove that he is the owner of the premises. The plaintiff-petitioner preferred an appeal C.M.A No. 22 of 1988 before the Vacation Civil Judge i.e, the Additional District Judge, Nellore, on 3-5-1988. Along with the appeal he has filed an application I.A No. 248 of 1988 for grant of temporary injunction and another application I.A No. 249 of 1988 for the appointment of an Advocate-Commissioner. The petitioner alleges that before he could file the appeal in the Court on 3-5-1988, in the early hours of that day at about 2 a.m the defendants have forcibly thrown out his belongings and evicted him from the suit premises. On 3-6-1988 an injunction was granted in I.A No. 248 of 1988 in C.M.A No. 22 of 1988, which was numbered after it was transferred to regular Court i.e, the Sub-Ordinate Judge's Court, Gudur. Against that C.R.P No. 1949 of 1988 was filed by the respondents-defendants and this was disposed of on 1-8-1988 by Justice P. Kodanda Ramaiah, with a direction to maintain the status quo and directing the lower appellate Court to dispose of the C.M.A within two months. Pending the Civil Revision Petition, there was interim suspension of the order of the lower Court. C.M.A No. 22 of 1988 was allowed by the lower appellate Court on 16-10-1989 and a temporary injunction was granted, pending disposal of the suit. Against that Civil Revision Petition No. 553 of 1990 was filed by the respondents on 16-10-1990. But that C.R.P was dismissed by Justice J. Eswara-Prasad, by his order dated 16-10-1990. Shortly, after the C.M.A was allowed by the Sub-Ordinate Judge, Gudur, on 16-10-1989, the plaintiff-petitioner filed an application I.A No. 590 of 1989 on 8-12-1989 for restitution under S. 144 read with S. 151 of Code of Civil Procedure. After the disposal of the C.R.P No. 553 of 1990, the learned Sub-Ordinate Judge, heard that application and dismissed it by his order dated 19-11-1991. The present civil revision petition is filed against the said order.

2. I would like to mention here that there is a small factual error in the order passed by the lower Court as the lower Court observed that the High Court directed maintenance of status quo in C.R.P No. 553 of 1990, whereas the status quo order was passed by Justice P. Kodanda Ramaiah in C.R.P No. 1949 of 1988 against the order passed in I.A No. 248 of 1988. But that straight factual error is not of much consequence. So the position is that though the plaintiff was granted an ex parte temporary injunction in I.A No. 286 of 1987 in O.S No. 264 of 1987 by the learned District Munsif, Sullurpet, that application was dismissed on 18-4-1988. The appeal C.M.A No. 22 of 1988 filed against that, was allowed and temporary injunction was granted and C.R.P No. 553 of 1990 filed against the said order was dismissed by the High Court. In between the dismissal of I.A No. 286 of 1987 and filing of the C.M.A on 3-5-1988, the plaintiff-petitioner was dispossessed.

3. The learned counsel for the petitioner has, therefore, contended that since the plaintiff-petitioner had the injunction in his favour till the petition was dismissed on 18-4-1988, the appeal filed by him was allowed and the revision was also dismissed, he must be put back in the same position because he was dispossessed by the respondents-defendants in consequence of the order passed by the learned District Munsif, Sullurpet, which was reversed in appeal. The learned counsel for the respondents contends that since the plaintiff-petitioner was not dispossessed by virtue of any order passed by the. Court and even according to the plaintiffs case, he was dispossessed forcibly by the defendants, S. 144 of the Code of Civil Procedure, does not apply and the remedy open to the plaintiff-petitioner is only to file a separate suit for possession or to amend the prayer in the present suit and seek relief for possession.

4. Section 144(1) of the Code of Civil Procedure, is as follows:

“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, 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.

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.”

5. The learned counsel for the respondents has relied upon the following decisions in support of his contention, that S. 144(1) of Code of Civil Procedure is not applicable and the remedy open to the petitioner-plaintiff is only to file a separate suit. In Krishna Reddy v. Kota Reddy, 1980 (1) ALT 429 a learned single Judge of this Court, Raghuvir, J. held that:

“In the instant case, it is not as a result through the process of court that possession was lost. Therefore, the only remedy was held in AIR 1918 Mad 1293 was, if the averment is true, that respondents should have recourse to a suit and not by an application under S. 144 of the Code of Civil Procedure in execution”.

He has also referred to the decision of a learned single Judge of this Court Seetharama Reddy, J. rendered in C.R.P No. 5029 of 1981. The learned Judge after considering the decision of the Madras High Court in Periyasamy v. Karuthiah, AIR 1918 Mad 1293 and another decision of the Madras High Court in Govinda v. Muniswamy, AIR 1937 Mad 315 and the decision of our High Court in S. Krishna Reddy v. P. Kota Reddy, 1980 (1) APLJ 18 held;

“But it is quite evident that it is only by virtue of pendency of the suit for injunction the plaintiff has taken possession of the land which was parted later by virtue of the dissolution of the injunction in consequence of the dismissal of the suit as confirmed both by the first appellate Court as well as the second appellate Court. If that be so, it can be stated that the plaintiff got possession of the property, which possession cannot be reckoned as authorised or legal. Hence, it cannot and should not be construed as the possession legally taken by virtue of any direction of the Court. If that be so, the principle of restitution as laid down under S. 144 of Code of Civil Procedure, I apprehend, has no application. In the circumstances stated above, the only remedy left to the party concerned enforcing restitution is to file a suit.”

6. In the decision reported in Begum Janammal v. Selva Arasu, AIR 1988 Mad 174 it was held (at p. 176):

“only in a case any benefit has been obtained by a party pursuant to or in consequence of or under the cover or colour of a decree or order of a Court, and such a decree or order was varied, reversed or set aside or modified by the higher Court, there could be a restitution within the meaning of S. 144 of the Code so as to place the parties in the position which they would have occupied but for such decree or order or such part thereof. It was not the case of the defendant that the plaintiff obtained possession pursuant to order or in consequence of or under the colour of order of a Court of the first Court or the decree of the lower appellate Court. The defendants would claim that the plaintiff got into possession unlawfully. In such a contingency, there was no scope for invoking the aid of S. 144 of the Code, and the bar of Sub-s. (2) of S. 144 of the Code has no application at all and the proper remedy was only by way of an independent suit”.

7. In view of the fact that the respondents-defendants have forcibly and unauthorisedly evicted the petitioner-plaintiff and had thrown out his belongings from the suit premises, as alleged by the petitioner, but the petitioner was not evicted by any order of the Court, I agree with the contention of the learned counsel for the respondents that S. 144 of the Code of Civil Procedure is toot strictly applicable to the facts of the case?

8. The further contention of the learned counsel for the petitioner is that even if the S. 144 of the Code is not strictly applicable, the Court can grant the relief under S. 151 of the Code, to set right the wrong that has been caused to a party and put back the parties in the same position in which they were but for the order passed by the learned District Munsif, dismissing the application in I.A No. 286 of 1987.

9. He has pointed out that the decisions referred to above have not considered whether such relief could be granted under S. 151 of Civil Procedure Code.

10. The learned Counsel for the petitioner has referred a decision of Division Bench of this Court in State Government v. M. Jeevraj & Co., AIR 1973 AP 27 wherein at para 12 it is stated as under:

“It is well settled that restitution can be ordered either under S. 144 or S. 151 of the Code of Civil Procedure………….Where the ingredients of S. 144, C.P.C are satisfied, the Court has no discretion to refuse restitution as the provisions of S. 144 are mandatory. There may be cases where the provisions of S. 144 are not strictly satisfied but at the same time it is just, proper and equitable to order restitution as no party should be allowed to take advantage or benefit of a wrong or illegal order of a court of law. In such cases, the court must step in and exercise its inherent power invested under S. 151 and do real and substantial justice to the parties, the very intendment and purpose of S. 151 being only, to meet the ends of justice and to prevent miscarriage of justice. The power vested under S. 151 being discretionary and to be used to do real and substantial justice to the parties, must be exercised fairly, reasonably and objectively, but not arbitrarily. Even assuming that the provisions of S. 144, Civil Procedure Code are not attracted, it admits of no doubt that the Court has inherent jurisdiction under S. 151 to order restitution”.

The rest of the decision is on the facts of the case. He has also referred to another decision of Division Bench in P. Lingeswararao v. Venkatasubarao, 1966 (2) An WR 144 in which it is pointed out that S. 144, Civil Procedure Code, in terms may not apply to such a petition, but since the decree-holder was deprived of the possession by the order of the lower Court and when that order was set aside in appeal by the High Court, the wrong done to the decree-holder has to be corrected and that can be corrected under S. 151, Civil Procedure Code, which gives ample power to the Court to correct the wrong. In the absence of any other provision, S. 151 would apply since the parties have to be brought to the original position as they were; the decree-holder is not only to get back the properties but also the profits and the Court was therefore right in allowing the petition.

11. There are two other decisions of this Court rendered by two learned Judges. In A. Seetharamadass v. S. Radhakrishna, 1977-II An WR 257, Lakshamaiah, J. has pointed out such of those cases that may not fall within S. 144 can as well as brought within the purview of S. 151 of the Code of Civil Procedure, provided those cases satisfy that requirement of S. 151 of the Code of Civil Procedure in accordance with the principles pronounced by the Courts of law while interpreting S. 151 of the Code of Civil Procedure.

12. In Kambhampati Sovamma… v. G. Radhakrishna Murthi…., 1985 (1) APLJ 307, K. Rama Swamy, Judge (as he then was) held as under:

“It is true that the petitioner invoked S. 151, C.P.C Wrong quotation of a provision of law does not take away the jurisdiction of the Court, so long as the power is traceable. It is therefore, held that restitution under S. 144, C.P.C could be ordered. Even otherwise, it is eminently a fit case to exercise inherent powers. It is true that the exercise of power under S. 151, C.P.C is discretionary. The lower Court having exercised the discretion, dismissed the application. Normally, this Court in exercise of revisional power under S. 115, C.P.C would be slow to interfere with the discretionary order of the lower Court. The power under S. 151, C.P.C has by a Court is only a reflection of the power inherently possessed by the Court to meet the ends of justice or to prevent the abuse of process of the Court. The faith of people is savour and succour for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of the Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. To meet such a situation, the need to exercise inherent power under S. 151, C.P.C stems from and its breath is coextensive with the necessity and it should be exercised and undo the resultant injury”

13. Relying upon all the abovesaid decisions, the learned Counsel for the petitioner contended that this is a case where the Court, while exercising its inherent powers under S. 151, C.P.C, should restore possession to the petitioner.

14. The learned Counsel for the respondent has pointed out that where there is a specific provision in the Code of Civil Procedure, the inherent power under S. 151, C.P.C cannot be invoked and therefore he argued that since there is specific provision under S. 144, C.P.C dealing with restitution, the provision under S. 151, C.P.C does not apply, and the petitioner cannot fall back upon S. 151, C.P.C to seek the relief. The learned Counsel referred to a decision of the Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 933. At para 19 of the said decision, it is stated that it is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.

15. The learned counsel for the respondents also referred to a decision in Mahendra v. Sushila, AIR 1965 SC 364, wherein it is pointed out that when the High Court purported to remand the matter for finding, it could not have recourse to inherent powers, because it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code.

16. The learned counsel for the petitioner referred to another decision of the Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 : 1963 All LJ 169 wherein it is pointed out that S. 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

17. Therefore, on a consideration of the decisions referred to above, it can be seen that in the absence of specific provision in the Code which deals with particular situation or unless there is any prohibition either express or implied, the Court is entitled to exercise its inherent powers under S. 151 of Code of Civil Procedure. In this case, as I stated above, S. 144 of C.P.C is not applicable to the facts of the case because possession was not taken by any order of the Court. There is no other provision which applies to the facts of the case i.e where the possession has been taken forcibly by a party during the pendency of the proceedings i.e when the application is dismissed by the trial Court and before filing the appeal. In these circumstances, I agree with the contention of the learned Counsel for the petitioner that in such circumstances, 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 by invoking the inherent jurisdiction. Therefore, I agree with the contention that the Court in exercise of its jurisdiction under Section 151 can grant restitution, even though Section 144 CPC may not strictly apply. That view of mine, as I have stated above, is supported by the two Division Bench decisions stated supra AIR 1973 AP 27 and (1964) 2 An WR 144.

18. The C.R.P is therefore, allowed and the order of the lower Court is set aside and I.A No. 590 of 1989 in O.S No. 264 of 1987 on the file of District Munsif, Sullurpet is allowed. The parties shall bear their respective costs.

Petition allowed.