Nathwani, J.
1. This revision application by the original defendant tenant arises out of restitution proceedings and is referred to the Division bench as there are conflicting decisions of this Court and other High Courts on the question whether an application for restitution of property taken possession of in execution of an exparte under Order IX, Rule 13 of the Code of Civil Procedure fails within Section 144 of the said Code. The short facts areas follows:-
2. In an ejectment suit field by the Respondent Landlord against the Petitioner - Tenant in the Small Cause Court at Bombay to recover possession of a room in a buildings situate at Kurla (hereinafter referred to as the premises) the landlord obtained an ex parte decree on February 4,1971 and in execution of the decree obtained possession of the premises on February 16 1971. On 17th February the tenant applied to the trial Court to set aside the ex parte decree on the ground that the summons was not served on him and also prayed for restoring possession of the premises. ON March 18, 1971 the trial Court set aside the ex parte decree be declined to restore possession on equitable grounds and gave directions for expediting the hearing of the suit. The petitioners thereafter filed revision Application No.161 of 1971 before the Appellate Bench of the small Cause Court against the said order. The Bench rejected the application holding that though the trial Court had jurisdiction under Section 151 but not under Section 144 of the Code of Civil Procedure to grant restoration, having regard to the equities between the parties, the case did not call for interference with the order of the trial Court. From that order the tenant has preferred this revision application. Section 144 reads as follows:-
'(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-p[art 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 and restitution or other relief which could be obtained by application under sub-section (1)'.
The Section provides a summary remedy and bans a suit for obtaining restitution or other relief provided for under sub-section (1)Now for ascertaining the scope of section 144, the crucial words are 'varied or reversed' and 'the Court of first instance', and depending upon different interpretations placed upon the said words in the context of the object and legislative history of Section 144 a narrow or wide view of its scope is taken in different decisions of this Court and other High Courts. Thus three views are taken viz.,
(i) Section 144 applied to cases only where a decree or order is varied or reversed in the same proceeding by a superior Court:
(ii) It applies also in cases where the decree or order is varied or reversed in a proceeding in the same suit by the same Court, for example, where an ex parte decree is set aside under Order 9. Rule 13 of the Code of Civil Procedure: and
(iii) It extends further to cases where the decree order is varied or reversed in a separate suit or proceeding between the same parties by a Court of competent jurisdiction.
In the present case we are concerned with the second category of cases. The doctrine of restitution is based on the principle stated by Lord Cairns in Alexander Rodger v. Comptoir D'Escompte De Paris (1871) 40 LJ PC 1: LR 3 PC 465 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 the suitors'. Supreme Court of India has reiterated this principle in Bhagwant Singh v. Sri Krishen Das. : [1953]4SCR559 and Binayak Swain v. Ramesh Chandra Panigrahi : [1966]3SCR24 .
3. As regards the legislative history of Section 144, it is set out on the majority judgment of the Supreme Court in Mahijibhai v. Manibhai : [1965]2SCR436 . It will suffice to notice here that Section 583 of the Code of 1882 (Act No.14 of 1882) for the first time gave statutory recognition in India to the principle of restitution. There was however a conflict under the said Code as regards the scope of restitution and also as regards the question of the bar of a suit in a Civil Court. Hence under the Civil Procedure code of 1908 Section 144 was enacted to avoid the conflict and to define the powers of the court. The old Section 583 was re-enacted in Section 144 with inter alia the following changes, the words 'in appeal' in the old Section 583 were deleted and section 144 was transferred to Part XI 'Miscellaneous' from its position in the Chapter XLI in the old Code headed 'of appeals from Original Decree', the words 'the Court of first instance' were added in Sub-Section (i), Further though Section 144 in terms applied only where a decree was varied or reversed, the Privy Council in' Jai Behram v. Kedar Nath Marwari (1922) 49 IA 351 = 25 Bom LR 643 : AIR 1922 PC 269on the analogy of Section 144 in terms applied only where a decree was varied or reversed, the Privy Counsel in Jai Behram v. Kedar Nath Marwari (1922) 49 IA 351 : 25 Bom LR 643 : AIR 1922 PC 269 on the analogy of Section 144 granted restitution where an order of sale made in execution of a decree was set aside by the same Court between the same parties observing that the duty or jurisdiction of the Court to act rightly land fairly in the circumstances towards all parties involved. Subsequently by the Code of Civil Procedure (amendment) Act, 56 the words 'or an order' were added in Section 144(1) thereby widening its scope.
4. There us no dispute before us that the scope of Section 144 has been widened by deleting the words 'in appeal' and a reversal or variation of a decree by a superior Court even in revision or reference will fulfil that part of Section 144(1). It may be noticed that Order 46. rules 5 of the Code of Civil Procedure empowers of the Court on a reference to set aside a decree. It is therefore, clear enough that the word 'reverse' in Section 144 is used in its ordinary sense of annulling or setting aside.
5. Next, it is to be considered whether Section 144 also applies when a decree is varied or set aside in the same proceeding by the same Court for examples when an ex parte decree is set aside under Order 9 Rule 13. of the Civil Procedure Code or on a review under Order 47. or (ii) a different suit or proceeding by the same Court or any other competent Court. There is a good deal of divergence of judicial opinion on these points. One view which may be terms narrow or technical construes the words 'reversed' and 'Court of first instance' strictly and as appropriate only to a case where a decree is reversed in the same proceeding by a superior Court. The other view is wide and his based on the duty of the Court to grant restitution and the legislative history of Section 144.
6. Turning then to the rulings of the High Courts a very early decisions the one given by the Division Bench the Madras High Court in Tangatur Subbarayudu v. Yerram Shetti Seshasani, ILR 40 Mad 299 = AIR 1917 Mad 293 where in an order in execution proceedings which amounted to a 'decree' as defined in the code was superseded by a decree passed in a subsequent suit between the same parties. It was held that the words of Section 144 are very wide and are not confined to cases where restitution is claimed on the reversal of a decree in first or second appeal. Provided the decree is varied of reversed, the Section applies, however the reversal or variance has been effected. The learned Advocate for the respondent-landlord, however, relied on certain observations in a recent decision of a Division Bench of the Madras High Court in S. Chokalingam Asari v. N. S. Krishna Iyer : AIR1964Mad404 . Now no doubt, there are observations in that case to the effect that in a case where a decree is varied or set aside in separate proceeding restitution can be ordered by a Court under its inherent jurisdiction apart from the provisions of Section 144 (See page 406). At the outset however, it is to be observed that in that case the decree of the trial Court in execution of which judgment-debtor's property was sold in public auction was varied or amended in appeal as contemplated by Section 144 and on a perusal of the said Para 9 it is clear that the Court also dealt with the judgment-debtor's claim for restitution as falling within Section 144 but observed that in some cases it would not be possible to restore the status quo ante between the parties and in support relied upon the language employed in Section 144, thus, the above observation is casually made and not a considered opinion necessary for the decision of the case and the same does not assist the respondent.
7. The Allahabad High Court in a Full Bench decision in Jagendra Nath Singh v. Hira Sahu : AIR1948All252 held that Section 144 applies to a case where the decree was varied or modified in a subsequent suit. Further a Division Bench in Allahabad Theatres Ltd. v. Pandit Ram in Allahabad Theatres Ltd. v. pandit Ram Sajiwan Misra : AIR1949All730 held that Section 144 applies to an application for restitution arising out of setting aside an ex parte decree under Order 9 Rule 13 of the Civil Procedure Code. The learned Advocate for the respondent however, relied on a recent ruling of that Court in Kundan Kishanlal v. Board of Revenue U. P. at Allahabad : AIR1972All184 . This was a decision of a k single judge who inter alia held that where an ex parte decree is set aside it cannot be said that the decree has been varied or reversed as contemplated by subsection (1) of Section 144. This case however is in direct conflict with the earlier Division Bench Case of Allahabad Theatres Ltd to which no reference is made and therefore does not advance respondent's contention.
8. As regards the Calcutta High Court Rankin C. J. in a Division Bench case of Gopal Paroi v. Swarna Bewa. : AIR1931Cal14 emphatically expressed the view that on the face of Section 144 a decree is only varied or reversed by a superior Court on appeal or on revision, or it may be on reference. But if a decree is set aside whether by a decree in an other suit or the decree is superseded these matters are not within the words of the section. The observations were however obiter and ignore the legislative changes made in Section 144. In another Division Bench case of Ramnath Karmarkar v. Shaikh Asanulla, : AIR1931Cal42 , while Mukerji J. took the same view of the scope of Section 144 as one taken by Rankin C. J. Guha J. took a contrary view though in this case also their observations are obiter. In a recent decision in Khushi Mohan Shah v. Subjas Chandra Saha (1965) 70 C WN 1027 the learned Single Judge held that Section 144 refers to all cases of variation or reversal of decree/order under Order 9 Rules 13 of the Code.
9. The Patna High Court also in Maqbool Alam v. Mt. Khodaija : AIR1949Pat133 (FB) adopted the view that as the effect of a decree in a subsequent suit had the effect of reversing a decree in an earlier suit section 144 was attracted.
10. Reference has also to be made to the cases of the Punjab and Mysore High Courts relied upon by the respondents viz. Gurdial Singh v. Sowaran Singh ILR (1909) 1 P&H; 724 and Smt. Kamlabai Narayan Naik v. Smt. Rukhmanibai Krishnaji Naik AIR 1972 Mys 282. The Punjab case arose out of setting aside an exparte decree. The learned Single Judge following an earlier decision of the Lahore High Court in Alfred Zahir v. Siraju-uddin AIR 1944 Lah 165, took the view that the setting aside of an ex parte decree does not vary or reverse the decree by substituting a different decree instead and the decree when set aside in a separate suit reopens the first suit for a decision A single Judge of the Madras High Court had also taken a similar view of an order setting aside decree under Order 9. Rule 13: See Kandaswami Mudali v. Annamalai Reddi AIR 1937 Mad 150. This view implies that the decree of reversal must be replaced by a fresh decree and should nt leave the suit open for a fresh decision. This view, with respect overlooks the fact that the words 'Reversal of a decree' are general and is in any event,. inconsistent with and, therefore, impliedly overruled by the ruling of the Supreme Court in Binayak Swain's case : [1966]3SCR24 (Supra).
11. In the Mysore case facts were different. It was not a case in which the original decree in execution of which the property was recovered by the decree holder was reversed or varied in the sub-squint suit. In fact, the plaintiff in the subsequent suit was not a party to the first suit and was not bound by the first decree. Thus, neither of these cases helps the respondent.
12. Coming to the decision the decisions of this Court there are two early Division Bench cases of S. Babya Swami v. Yesu Cheoo Nayakin 20 Bom LR 925: : AIR1919Bom175 and M. K. Swamirao v. J. J. Valentine, 22 Bom LR 403: AIR 1920 Bom 12. In both the cases the question arose whether Section 144 applies to an application for restitution arising out of setting aside an ex parte decree under Order 9. Rule 13 of the Code. But the point was left open as it was held in the first case that in any event it would be covered by Section 151 and in the other, by Section 47 of the Code.
13. In the next case of Shivappa Dhondappa v. Ramliugroppo Shivappa, 39 Bom LR 112: AIR 1937 Bom 173 Rangnekar J. regarding the construction of Section 144. observed (P. 115) (of Bom LR) = (at pp. 174. 175 of AIR):-
It also is clear that the reversal or variation of the decree must be in the same proceeding between the parties; it may be as the result of a successful appeal or an application for review or in any other manner provided for by the Code, and it is also clear that the decree must be between the parties to the record and the reversal or modification of it must be in favour of the party applying or someone claiming under him. Upon the plain meaning of the section, therefore, I am clearly of opinion that it is impossible to hold that, it is some other suit not connected with the suit in which the application for restitution is made the decree under which a party has been deprived of property or other benefit is set aside, the section can apply'. (underlined by us). Thus the section was construed as extending to a case of reversal or variation of a decree in the same proceedings in any manner provided for by the Code which would take in a case of setting aside an ex parte decree under Order 9. Rule 13 of the Code. From the facts it appears that in carrying out the first decree for partition of joint family lands the Collector had to take into account the decree passed in the second suit which was ultimately set aside in the third suit. However the plaintiff in the first suit was not a party to the third suit nor does it appear that in the third suit there was any relief asked for in respect of the decree passed in the first suit. The learned Judge seems to have. therefore considered the third suit as not connected with the first suit in which the application for restitution was made. it appears to us that the final decree in the first suit had taken into account the second decree and was to that extent or in that sense dependent upon the Second decree but that is a different thing from where a decree in an earlier suit is declared wholly or in part invalid or void or is set aside by a competent Court in a subsequent suit or proceeding between the same parties or their representatives in interest. Thus the observation in the latter part of the said passage are qualified and restricted to the suit not being connected with the suit in which the application for restitution was made and it does not seem to us that the learned Judge in the observations quoted above impliedly held that even if the original decree was varied or set aside in a sub-sequent suit between the same parties by a competent Court. Section 144(1) would not be attracted.
14. The next case is an unreported decision of Mr. Justice Gajendragadkar (as he then was) in Mahavir Prasad v. Shiv-Kishan in Civil Revn. Appln. No. 1332 of 1956 decided on September 26, 1956 (Bom). That was also a case for restitution arising out of setting aside an ex parte decree. The learned Judge referred to the Madras case of Tangatur Subbarayudu ILR 40 Mad 299: AIR 1917 Mad 293 and Shivappa's case 39 Bom LR 112 : AIR 1937 Bom 173 decided by Mr. Justice Rangnekar and observed that:-
'If a decree is set aside not by the appellate Court but as a result of other proceeding or an ex parte decree is set aside under Order 9 Rule 13, the words used in Section 144 would not cover such a case. Section 144 seems to contemplate cases where a decree passed by the trial Court is either varied or reversed by the appellate Court'.
Now with great respect the learned Judge ignored the effect of the legislative changes made in Section 144 including including the deletion of the words 'in appeal' from the old section 583. Further as already seen. Rangnekar J. construed Section 144 as including the claim of restitution arising out of setting aside an ex parte decree under Order 9. Rule 13.
15. Then there are three unreported decisions of this Court two by Mr. Justice J. C. Shah (as he then was) in Civil Revn. Applns, Nos 1165 and 1684 of 1955 decided on 13th February 1956 (Bom ) and one by Mr. Justice Patel in Lal Mohamed v. Anwarbeg in Civil Revn. Appln . No. 863 of 1960 decided on 6th February 1961 (Bom). In each of them the claim for restitution arose out of setting aside of ex parte decree. There is however, no mention in any judgment of Section 144 or any authority on the question and therefore these decisions are also of no help in determining the present question.
16. The last case is the decision of Mr. Justice Wagle in Miss Devi Ramchand v. S. V. Bastikar, : AIR1968Bom57 , wherein restitution was claimed after an ex parte decree was set aside. The learned Judge has referred to earlier decisions of this Court but his attention was not called to Mohavirprasad's case. He thought (see page 131) that the difference in opinion amongst the High Courts could be resolved on a view that an application under Section 144 is not an application in execution and as Sections 37 and 38 of the Code were not attracted the expression 'the Court of first instance shall' was added to provide a forum for the institution of an application under Section 144 and on such an interpretation Section 144 would provide 'for every case of a reversal or variation including the reversal by a Superior Court by the same Court in the same proceedings or by a different Court in different proceedings'. The learned Judge's attention however, was not invited to the ruling of the Supreme Court in : [1965]2SCR436 and tow Division Bench decisions of this Court in Kurgodigauda v. Ningangauda. AIR 1917 Bom 210 and Saved Hamidalli Kadamalli v. Ahmadalli mahibuballi ILR (1921) 45 Bom 1137 = AIR 1921 Bom 67 wherein it was held that an application for restitution under Section 144 arising out of a reversal of a decree or trial Court by an appellate Court was an application in execution of the appellate decree and not an independent application for purpose of determining whether Art. 182 or Article 181 of the India Limitation Act, 1908 governed such an application. In Mahijibhai's case the Supreme Court observed that the restitution flows from the appellate decree and the application for restitution is filed to implement or enforce the same: the party is entitled to the relief restitution because the appellate decree enables him to obtain that relief either expressly or by necessary implication and he is recovering the fruits of the appellate decree (See page 1484, paragraph 23). The Supreme Court seems to have left open the question whether an application for restitution arising out of setting aside an ex parte decree or a decree setting aside another decree in a collateral proceeding or a dependent decree is an independent application falling within Section 144. (See page 1434, para 26). However, in Maqbool Alam v. Mt. Khodaija : [1966]3SCR479 , the Supreme Court opined that in Mahijibhai's case : [1965]2SCR436 it had 'by a majority held an application for restitution under Section 144 of the Code of Civil Procedure is an application for execution of a decree' and on that basis proceeded to hold that as the principle of res judicata applies to execution proceedings, the decision in restitution proceedings taken by Khodaija under Section 144 operated as res judicata in the subsequent suit filed by the appellant against Khodaija (see page 1196 para 3). Now, the suit which gave rise to the appeal before the Supreme Court was an offshoot of the proceedings consequent upon the decision of the Patna High Court in : AIR1949Pat133 (FB) (supra). What is significant to note here is the fact that Khodaija's flame for restitution arose out of setting aside a decree by a compromise decree ultimately passed by the High Court in appeal in a subsequent suit filed by Khodaija. It would be seen from the para above that in Maqbool Alam's para above that in Maqbool Alam's case the Supreme Court expressed generally the view that an application for execution of a decree though there is no discussion or reference to the conflict of judicial opinion on the point mentioned in para 26 of the judgment in mahijibhai's case. However in Maqbool Alam's case the compromise decree substantially reversing the earlier decree was passed in a subsequent suit before the same court and, therefore, no inconsistency could be said to have arisen between Section 37 and 38 and Section 144 of the Code. So far as the actual form for restitution was concerned. But there may arise such an inconsistency if a case is reversed in a subsequent suit or proceeding or proceeding by another Court of competent jurisdiction. This may be illustrated as follows:- a landlord in an ejectment suit filed in Bombay Small Causes Court obtains a decree against a tenant; the tenant then files a suit in Bombay City Civil Court against the landlord for a declaration that the ejectment decree is null and void on the ground that the premises in question are not governed by the Bombay Rent Act and his suit succeeds. If, in the meanwhile, the landlord had executed the decree and obtained possession of the demised premises the question as to which Court is competent to grant restitution of possession may create difficulty. This shows the need for Legislature to remove uncertainty by suitably amending Section 144. Our attention has been drawn to the fact that a Bill No. XXXIV of 1968 introduced in Rajya Sabha on 18th December 1968 was for amending the present Civil Procedure Code and the same contains provisions for enlarging the scope of Section 144 so far as setting aside or modification of a decree by that passed in a subsequent suit is concerned. In the present case, however, no such inconsistency is involved on the basis of the present application under Section 144 being one for execution of the order setting aside the ex parte decree. In the instant case the Court in which the suit was instituted and which passed ex parte decree and the court which aside such decree is the same i.e. Bombay Small Cause Court exercising jurisdiction under Section 28(1) of the Bombay Rent Act.
17. From the above discussion of case law, it is obvious that there is apparently great preponderance of judicial opinion in support of liberal construction of Section 144. In the present case we are concerned with an application for restitution arising out of setting side of an exparte decree under Order 9, Rule 13 and we hold that such an application falls within the purview of Section 144.
18. Further, as observed by the Supreme Court in Binayak Swain's case : [1966]3SCR24 (Supra) the obligation on the party who recovered the benefit of an erroneous decree to make restitution arises automatically on the reversal of a decree and necessarily carried with it the right to restitution. A similar view was taken by a Division Bench of this Court also in Krishna v. Bapu Kalu. : AIR1959Bom490 . It was, therefore, in the present case obligatory on the trial Court to grant restitution on the trial Court to grant restitution in the manner provided by Section 144 including restoration of the possession of the property to the landlord. But both the trial Court and the Appellate Court of Small Cause Court took an erroneous view that Section 151 applied failed to exercise their jurisdiction under Section 144.
19. However, the learned advocate for the respondent strenuously urged that the exercise f revisional jurisdiction under Section 115 of the Code is discretionary and we should not interfere with the order as having regard to the equities of the case such an interference by us would not only not foster justice but would do injustice to the respondent. In this connection he pointed out that the respondent landlord who had been confined to a lunatic asylum wanted the premises for his bona fide use. But before us it has been conceded that the respondent having relapsed into insanity is not at present residing in the suit premises but is removed to the lunatic asylum. Next it was pointed out that even since prior to the filing of the suit by the respondent the petitioner had also got his ration card issued in his name at his new place. There is no satisfactory denial by the petitioner in his affidavit in rejoinder and therefore, prima facie the respondent's above contention seems to us to be true. The respondent further pointed out that the petitioner had delayed the proceedings from time to time by asking for adjournments and though the suit was expedited by the trial Court the petitioner had succeeded in preventing its early hearing so far. In this connection the respondent, admitted Mr. Parikh, for the respondent, admitted that thereafter on at least four occasions i.e., on January 22, February 15, March 2, and March 21st. 1973 the hearing stood adjourned by consent of both the parties. Therefore in our view there is no force in the contention that the petitioner delayed to the hearing of the suit. Having regard to the above circumstances . we are not satisfied that Respondent has made out a sufficient case for our not interfering with the deices of the Court below. Further . Mr. Jadhav. on behalf of his client who is present in Court that on restoration of the premise the Petitioner and members of his family alone will remain in possession of the premises and that he will not part with possession of the same or any part thereof and that he will not induct any other person there upon by way of sub-tenancy or leave and licence or as his paying guest.'
20. In the result we allow the application and make the rule absolute. The Respondent to hand over forthwith the possession of the premises to the Petitioner.
21. We direct that the trial Court to hear and dispose of the suit as expeditiously as possible.
22. The operative the of this order to be sent forthwith to the concerned Court.
23. In the circumstances of the case there will be no order as to costs on this application.
24. Application allowance.