Banchhanidhi Das v. Bhanu Sahuani And Ors.

1. This appeal arises out of a restitution proceeding under Section 144. Civil P. C. The facts leading to this proceeding are recounted herein-below.

Sri Radhakanta Mahaprabhu, a deity represented by its trustee and Archak Banchhanidhi Das as plaintiff No. 1 and Banchhanidhi Das as plaintiff No. 2 instituted a suit for declaration that the second plaintiff's forefathers were the hereditary Archaks of the plaintiff No. 1 and that in due course of succession the hereditary Archakship has come to vest in the plaintiff No. 2. Further declaration was sought that the defendant No. 1 has no manner of right, title or interest in the deity's properties or in the institution. There was a recital in the plaint that plaintiff No. 2 was in possession of the deity's properties as such hereditary Archaks. Defendant No. 1. who mainly contested the suit put forward a defence that his father was the Dharmakarta and had endowed the lands to the deity and that plaintiff No. 2 was only a paid Archak with no hereditary right. The trial Court dismissed the suit on 12-1-1961 An appeal was carried before the District Judge. That appeal was filed on 8-3-1961 and numbered as T. A. 31/61. During the pendency of this appeal, the defendant No. 1 locked the temple on 17-3-1961 and thereby ousted plaintiff No. 2 from it. Subsequently the District Judge issued an interim order of injunction on 30-3-196! which was made absolute on 10-4-1961 after hearing defendant No. 1 who took the plea that he had already dispossessed the second plaintiff during the first week of February, 1961. that is to say, before filing of the T. A. 31/61 and as such the plaintiff was not entitled to an order of injunction. Defendant No. I moved this Court in M. A. 43/61 against the order of the District Judge granting injunction against him. M. A. No. 43/61 was allowed on 9-9-1963 and the injunction order of the District Judge was vacated on the ground that the plaintiff No. 2 being already out of possession on the date of his application for injunction was not entitled to recover possession under the guise of an injunction order. This is what this Court said :

"The judgment of the learned District Judge cannot stand both on fact as well as in law. On the admission of plaintiff No. 2 that on 17-3-1961 he was dispossessed it was within the jurisdiction of the learned District Judge to grant an order of injunction. Injunction is primarily a relief against possession, and the party continuing in possession can only ask the Court to issue an order of injunction against an interference with possession. If on 17-3-1961 plaintiff 2 was dispossessed on his own allegation, if not earlier as alleged by defendant No. 1 (Defendant No. 1 alleged dispossession in first week of February. 1961) no relief by way of injunction either under Order 39, or under Section 151, Civil P. C. can be granted. This is sufficient to dispose of the application."

T. A No. 31/61 was dismissed on 29-9-1964. Plaintiff then filed S. A. No. 24/65 which was disposed of on 17-12-1969. The affirming decree of the lower appellate Court was modified to the limited extent that a declaration was given that plaintiff No. 2 was the hereditary Archak. The other finding that defendant No. 1's forefathers were the Dharmakarta of the religious institution was upheld.

2. The plaintiff No. 2 filed an application under Section 144, Civil P. C. on 16-3-1971 which was registered as M. J. C. No. 51/71'. He claimed Rupees 9341.50 p. as computed in para. 4 of his restitution petition towards his arrear dues and recovery of possession of the office of Archakship by way of restitution and for costs.

The original defendant No. 1 in this suit died at the stage of second appeal and his legal representatives had been substituted. These legal representatives contested the restitution proceeding on the ground, inter alia, that since the reliefs claimed by way of restitution were not the benefits received by the defendant No. 1 under any erroneous judgment, the obligation to restitute did not arise.

3. The Munsif allowed the restitution of plaintiff No. 2's former possession under Section 144, Civil P. C. but reiected the reliefs for arrear dues and costs as they were not determined in the suit. He, however, left those questions open for consideration during execution proceedings.

4. On appeal, the lower appellate Court dismissed the restitution application. According to him since the plaintiff-petitioner filed a suit for mere declaration that he was the hereditary Archak of the deity and that declaration was negatived by the first two Courts and allowed by this Court in Second Appeal, there was nothing for restitution. He, however, observed as follows :

"By virtue of the decree passed by the Hon'ble High Court he is to report (for) duty in the temple and if he is in any way obstructed by the defendants-appellants, the party is at liberty to move the Hon'ble Court for contempt of Court. But I find nothing which should be restituted to him by the order of this Court as nothing has been gained by the other party by an erroneous judgment of the lower Court. In this view of the matter I set aside the order of the learned Munsif and allow the appeal."

5. It is now to be considered how far the doctrine of restitution embodied in Section 144, Civil P. C. is attracted in the context of the facts aforesaid :

Section 144, Civil P. C. runs as follows :

"144. Application for restitution :

(1) Where and in so far as a decree or an order 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 order 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 Sub-section (1)."

6. This section has been considered by the Supreme Court in a number of cases.

In the case of Bhagwant Singh v. Sri Kishen Das, AIR 1953 SC 136 dealing with the scope of the Section 144. Civil P. C. their Lordships said :

"The doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interests of justice.

Where the judgment-debtor fails to show that the sale of his property was in substance and truth a consequence of the error in the decree that was reversed he cannot invoke the aid of Section 144."

The same view was reiterated in the case of Binayak Swain v. Ramesh Chan-dra, AIR 1966 SC 948 as follows :

"The principle of the 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 erroneous 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 erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from."

Thus, the following conditions must be fulfilled for application of the principle of restitution.

(1) There must be an erroneous iuds-ment;

(2) Benefit of that erroneous judgment must have been received by a party to the record, namely, defendant No. 1 in this case;

(3) The party claiming restitution must show that as a consequence of the error in the judgment or decree, a party received the benefit; and (4) The erroneous judgment was reversed in appeal.

The facts recounted above will show that the suit was for a declaration only. There was no consequential prayer for an injunction restraining the defendants from interfering with the plaintiff's possession or restraining them from doing any other act which would interfere with the right claimed by the plaintiff. There was no claim for any salary. There was thus no judgment rendered in regard to possession or salary of the plaintiff No. 2 and the judgment of the first two Courts dealt with the sole question of declaration of right of plaintiff No. 2 and negatived the declaration sought for. No benefit was receivable by defendant No. 1 under or pursuant to such an erroneous declaratory judgment nor any benefit was received under such erroneous judgment or decree. The possession which defendant No. 1 acquired on 17-3-1961 was an independent act of violence or high-handedness on his part. It may be that defendant No. 1 was emboldened to take law into his own hand and to oust plaintiff No. 2 because of the erroneous judgment negativing the declaration of the right of plaintiff No. 2 but that is nqt the same thing as to say that the defendant No. 1 got possession pursuant to or under the erroneous judgment or decree which were reversed in second appeal or as a result of any act of Court done in that litigation. Thus no obligation to restitute possession was cast on defendant No. 1 and after him, on his legal representatives.

7-8. Mr. Panda contends that even if Section 144 is not applicable in terms, nevertheless, possession should be delivered to the plaintiff in exercise of the inherent powers of the Court in a proper case, and he asserts that this is a proper case where such inherent power should be exercised. In support of this contention he had relied upon a few decisions which I now will proceed to deal with. The earliest case relied upon by him is a case of Hara Chandra Samanta v. Chintamoni Datta reported in (1913) 21 Ind Cas 84 (Cal). In this case the plaintiffs brought a suit for recovery of property and obtained a decree. The defendants, who were in possession of the suit property on the date of the suit were deprived of that possession by the plaintiffs, though this was not effected by execution of the decree. In this case a decree for possession had been passed and such possession should have been delivered if the decree had been executed. But before execution the plaintiff obtained possession. Thus this case is distinguishable on facts from the case in hand where the judgment and decree were merely declaratory ones and no pos-session was directed to be delivered thereunder. So the possession acquired by the plaintiffs cannot even be assumed to have been received in pursuance of jthe decree.

Reliance was next placed upon the case of Mohammad Hanif v. Khairat Ali, AIR 1941 Pat 577. The facts of this case may be briefly stated. One Raja was the proprietor of Serampur Estate. He also acquired Khorposh rights in village Girnia by purchase at an auction sale in 1903. After Raja's death his uncle instituted a suit against his (Raja's) widow (hereinafter referred to as Rani) in respect of all of the Raja's properties inclusive of village Girnia. The Raja had title to village Girnia but had not obtained possession thereof. The suit was decreed and the uncle took delivery of possession. Since the Raja had not obtained possession of Girnia which he had purchased in auction, the uncle brought another title suit against the khorposh-dars and got a decree and took delivery of possession. In course of this litigation the uncle died and his son was sub- stituted. After the decree of the Sub-Judge in favour of the uncle, Rani appealed to the High Court. The High Court modified the decree. Rani went further up to the Privy Council and there she was successful to the extent that her right was declared to all the self-acquired properties of her husband which included Girnia. In obedience to the decree of the Privy Council, the widow took delivery of possession of all the self-acquired properties including the khorposh rights in village Girnia by way of restitution under Section 144, Civil P. C. as by that time possession had been obtained by the uncle or his heir. It will be seen from the facts that in uncle's first suit against the Rani village Girnia was also the subject-matter of that litigation. The uncle sot a right to possession pf village Girnia under his decree against the Rani and obtained v possession of the same in execution of a decree for possession passed in a subsequent suit against the Khorposhdars on the footing of his title acquired under the decree in his first suit. When the Privy Council decision was rendered the uncle or his successor-in-interest was already in possession of Girnia. The decree for possession in the subsequent suit was thus a benefit received in pursuance of the decree that the uncle got against the Rani. That decree having been reversed, the Rani was entitled to all the benefits which she would have been obtained if placed in the position of the uncle which she would have occupied but for the erroneous decree by way of restitution, and those benefits would include possession acquired by the uncle only on account of the erroneous decree. In such circumstances, their Lordships said that Section 144 applied even though possession was transferred merely in consequence of the decree and not through proceedings under it. Even apart from the provisions of section 144, their Lordships said that the Court was competent to grant restitution under the inherent powers in a proper case. This decision, in my opinion, does not help Mr. Panda's client because the defendant No. 1 did not obtain possession through Court on the footing of declaration of his title.

In the case of Jai Berham v. Kedar Nath, AIR 1922 PC 269, their Lordships of the judicial Committee of the Privy Council noticed Section 144, Civil P. C. and said that it was the duty of the Court under that section to 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. This dictum is in full accord with as has been said by the Supreme Court in the cases cited above. They also proceeded to state another principle, namely, that the duty or iurisdiction of a Court under Section 144, Civil P. C. is also inherent in the general iurisdiction of the Court to act rightly and fairly according to circumstances towards all parties. It was amplified by reference to an extract from the opinion of Cairns. L. C. in Rodger v. Comptoir d' Escompte De Paris, (1871) 17 ER 120 which runs as follows :

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 and when the expression 'the act of the Court', is used, it does not mean merely the act of the primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which en tertains iurisdiction over the matter upto the highest Court which finally disposes of the case.

It is clear that this principle apart from Section 144, Civil P. C., can be invoked only when a party has suffered injury by act of the Court. In the present case, plaintiff No. 2 did not suffer any injury by reason of any act of Court and so this principle also cannot be called in aid.

In the case of Rohani Ramandhwai Prasad Singh v. Har Prasad Singh, AIR 1943 PC 189 their Lordships of the Judicial Committee noticed Section 144 and said that-

"When a decree is varied or reversed in circumstances giving rise to a right by way of restitution, the right arises automatically and is claimable under Section 144 before the trial Court."

In this case one 'P' brought a suit against 'A', a minor, for possession of A's estate which was under the Court of Wards and got a decree. An appeal was carried to the High Court by 'A'. While appeal was pending in the High Court, by order of that Court, 'P' was put in possession of suit properties on condition that he furnished surety in a sum of Rs. 42,000/-. The surety was furnished and P got possession. The High Court ultimately reversed the trial Court's decree and dismissed P's suit. Their Lordships said that A could get mesne profits from the P in respect of the P's possession of the estate, in pursuance of the High Court's order by way of restitution. But no damages claimed on account of wrongful act of the plaintiff during that period of his possession could be awarded by way of restitution. This clearly reiterates the view that where a party receives a benefit in pursuance of an erroneous decree or on account of such a decree by order of Court as an interim measure a right by way of restitution arises which is to be given effect to either under Section 144, Civil P. C. or under the other principles of restitution which is inherent in the general iurisdiction of the Court, The instant case does not come either under any one of these two principles. This case does not support the contention of Mr. Panda.

9. Having regard to the principles of law discussed above and all the circumstances of the case, I am of opinion that the restitution prayed for has been rightly reiected by the lower appellate Court. The appeal accordingly fails and is dismissed, but there would be no order for costs.

10. During course of argument Mrs. Padhi appearing for the respondents fairly conceded that in view of the declaration of the hereditary right of Archakship of the plaintiff No. 2, he is entitled to perform the seba puia of the deity and other duties of the office. Her clients are not interested in prohibiting him to go inside the temple and to perform sebapuia of the deity and to carry out other duties of the office. The declaration of hereditary Archakship in favour of plaintiff No. 2 vests him with a civil right and any interference with that right will certainly give him a cause of action for getting appropriate remedy in appropriate Court of law. It is hoped that the respondents here shall not interfere with the right of plaintiff No. 2 as hereditary Archak. His claim for ar-rear salary, for the reasons stated above, has been rightly reiected. as being beyond the scope of the doctrine of restitution embodied under Section 144, Civil P. C.

11. Appeal dismissed without costs.