Case Note & Summary
The dispute originated from a suit filed by Ganeshi Lal, claiming as next friend of the deity at Bhawani Mata Mandir, seeking a permanent injunction against Geetabai and others to restrain them from interfering with possession over agricultural land. The trial court dismissed the suit on 11 April 1981, finding that the plaintiff failed to prove possession. The first appeal and second appeal were dismissed on 23 March 1982 and 5 May 1984 respectively. After the dismissal of the second appeal, Geetabai filed an application under Section 144 CPC for restoration of possession and mesne profits before the executing court, which was dismissed on 24 August 1998. The first respondent's appeal to the Additional District Judge was allowed, remanding the case to the executing court. The appellant's second appeal to the High Court was dismissed in limine on 3 December 2004, leading to the present appeal before the Supreme Court. The core legal issue was whether Section 144 CPC applied when the interim injunction did not direct delivery of possession. The appellant argued that three conditions for restitution were not satisfied: no decree or order was varied or reversed, the respondent was not entitled to restitution, and the relief claimed was not consequential to any variation. The respondent contended that the appellant took possession after the interim injunction and thus restitution was warranted. The Supreme Court analyzed Section 144 CPC and held that it applies only when a decree or order is varied or reversed and the party seeking restitution was placed in possession by virtue of that decree or order. Since the interim injunction did not require the defendant to hand over possession, there was no decree or order that was varied or reversed. Consequently, the executing court was correct in dismissing the application, and the first appellate court's remand order was unsustainable. The Supreme Court allowed the appeal, set aside the High Court's judgment, and dismissed the respondent's application under Section 144 CPC.
Headnote
A) Civil Procedure - Restitution - Section 144 CPC - Applicability - The appellant filed a suit for permanent injunction which was dismissed; the respondent sought restitution under Section 144 CPC claiming that the appellant took possession during the pendency of the suit due to an interim injunction - The Supreme Court held that Section 144 CPC applies only where a decree or order is varied or reversed and the party applying was placed in possession by virtue of such decree or order - Since the interim injunction did not direct delivery of possession, Section 144 was not attracted - The executing court was justified in dismissing the application; the first appellate court's remand order was unsustainable (Paras 4-6).
Issue of Consideration
Whether Section 144 of the Code of Civil Procedure, 1908 is attracted when an interim order of injunction did not require the defendant to hand over possession to the plaintiff, and the suit for permanent injunction was ultimately dismissed.
Final Decision
Appeal allowed; judgment of High Court dated 3 December 2004 set aside; application filed by respondent under Section 144 CPC before executing court dismissed; no costs.
Law Points
- Section 144 CPC applies only when a decree or order is varied or reversed and the party seeking restitution was placed in possession by virtue of such decree or order
- interim injunction not directing delivery of possession does not attract Section 144.
