1965 (12) TMI 143 - SC - Indian Laws

Appellant entitled to property restitution post-reversed decree sale.

The appellant was entitled to restitution of properties sold in execution of a decree that was later set aside. The Court held that the appellant should ... - Issues Involved:1. Entitlement to restitution under Section 144 of the Civil Procedure Code.2. Validity of execution sale under an ex parte decree subsequently set aside.3. Impact of subsequent decrees on the right to restitution.Issue-Wise Detailed Analysis:1. Entitlement to Restitution under Section 144 of the Civil Procedure Code:The primary issue is whether the appellant was entitled to restitution of his properties purchased by the judgment-debtor in execution of the decree passed by the District Judge, which was later set aside by the High Court. Section 144(1) of the Civil Procedure Code states, 'Where and in so far as a decree or 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 such part thereof as has been varied or reversed.'The Court held that the appellant was entitled to restitution because the decree under which the properties were sold had been set aside at the time of the application for restitution. The principle of the doctrine of restitution imposes an obligation on the party who received the benefit of an erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically upon the reversal or modification of the decree.2. Validity of Execution Sale under an Ex Parte Decree Subsequently Set Aside:The properties were sold in execution at the instance of the respondents who were executing the ex parte decree passed by the District Judge on March 9, 1943. The appellant's properties were sold, and the respondents took delivery of possession on May 17, 1946. The Court found that the execution sale held under the previous ex parte decree, which was set aside by the High Court, becomes invalid after the decree is reversed. The decree-holder who purchased the properties in execution of the invalid decree is bound to restore to the judgment-debtor what he had gained under the decree which was subsequently set aside.3. Impact of Subsequent Decrees on the Right to Restitution:The respondents argued that since a fresh decree was passed in their favor after remand, the appellant was not entitled to restitution. The Court rejected this argument, stating that the right to claim restitution is based on the existence or otherwise of a decree in favor of the plaintiff at the time when the application for restitution was made. The subsequent decree did not validate the previous execution sale held under the ex parte decree that was set aside.The Court referred to several precedents to support its decision, including the Judicial Committee's decision in Zain-Ul-Abdin Khan v. Muhammad Asghar Ali Khan, where it was held that decree-holders who purchased properties under their own decree, which was later reversed, are bound to make restitution. The same principle was reiterated in cases decided by the Calcutta High Court and the Bombay High Court.Conclusion:The Court concluded that the appellant is entitled to restitution of the properties sold in execution of the ex parte decree, subject to the condition that he deposits the amount of Rs. 970 in the Court of the Munsif, Aska within two months. If the deposit is made, the sale of the properties will be set aside, and the respondents must deliver possession to the appellant. The appellant is not entitled to past mesne profits but will be entitled to future mesne profits if the respondents fail to deliver possession after the deposit is made.Final Judgment:The appeal was allowed in part, with no order as to costs. The appellant is entitled to restitution of the properties, subject to the specified conditions. If the deposit has already been made, the appellant can take possession of the properties through the executing court and claim future mesne profits from the date of the judgment until the actual delivery of possession.