TMI Blog1973 (4) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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 substituted. 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 of 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but the act of the Court as a whole from the lowest Court which entertains jurisdiction 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 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/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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