“Restitution means an act of restoring a thing to its proper owner”.
- In other words, It means restoring benefits to the party whose benefits by order or decree, other party had received and subsequently such decree has to be found wrong.
- Restitution is not defined under C.P.C., but its application can be made under section 144 Civil Procedure Code 1908.
Doctrine of Restitution
The principle of the doctrine of Restitution is as under-
- On the reversal of a decree, the law imposes an obligation on the party to the suit who received an unjust benefit of the erroneous decree to make restitution to the other party for what he has lost.
- The obligation arises automatically on the reversal or modification of the decree and necessarily carries with it, the right to restoration of all that has been done under the erroneous decree.
- The court in making the restitution is bound to restore the same position to the parties which they were occupied at the time, when the court by its erroneous action has displaced.
- Section 144 does not confirm any new substantive right, it merely regulates the power of the court.
Object of Restitution
Doctrine of Restitution is based on the maxim-
“Actus Curiae Neminem Gravabit” i.e. “The act of the Court shall not harm to any one.”
- Lord Cairns, stated that “ 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”.
- Thus, this doctrine is based on equitable principles. So in its proceedings, the court should pass an order consistent with justice to both the parties.
Nature and Scope
- Restitution under section 144 C.P.C. , does not create a new right as such.
- It merely regulates an existing right.
- It is available to the parties as well as his legal representative.
- If the restitution application has been dismissed on merits then the principle of Res – Judicata will apply.
- Granting restitution is the paramount duty of all courts to ensure that they do not cause injury to any litigant.
Kabita Trehan VS. Balsara Hygiene Product Ltd. (1994), S.C
“The Hon’ble Supreme Court held that Section 144 is not exhaustive and court can use its inherent power for grant restitution”.
Before restitution can be ordered the following three conditions must be satisfied-
- It must be in respect of the decree or order which had been reversed or varied.
- The party applying for restitution must be entitled to take benefits under the reversing decree or order.
- The relief claimed by the party must be properly consequential on the reversal or variation of the decree or order.
However, if these conditions are satisfied the court must grant restitution. It is not discretionary but obligatory for the court to grant it.
Who may apply for Restitution?
- The party to the decree or order.
- He must have entitled to any benefit by way of restitution.
Against whom Restitution may be granted?
- Parties to the suit.
- The legal representatives of the parties.
But it does not apply against the sureties and also cannot grant against a bona-fide auction purchaser.
Where the application for Restitution lies?
The application lies to the court which has passed the decree or made the order.
Court which passed the decree or order includes-
- The court of first instance, where the decree or order has been varied or reversed in exercise of appellate or Revisional Court.
- Where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order.
- Where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, then any court which has jurisdiction of making such application.
Nature of proceedings
Earlier, there was a conflict of Judicial opinion as to whether proceedings under section 144 of the code were proceedings in execution. According to one view, they were, but according to other view, they were not.
But after the decision of the Supreme Court in :
Mahiji bhai Mohanbhai Barot VS. Patel Manibhai Gokalbhai AIR 1965 S.C
The Hon’ble Supreme Court in this case sated that “The proceedings for restitution are proceedings in execution.”
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