Saila Mary Grace, vs Prodduturi Prasad,
2021 Latest Caselaw 172 AP

Citation : 2021 Latest Caselaw 172 AP
Judgement Date : 19 January, 2021

Andhra Pradesh High Court - Amravati

Saila Mary Grace, vs Prodduturi Prasad, on 19 January, 2021

Bench: Lalitha Kanneganti

      THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

           CIVIL REVISION PETITION NO.2015 of 2013
ORDER:-
      The present Civil Revision Petition is filed under Article 227

of the Constitution of India aggrieved by the order dated

13.02.2013 passed in I.A.No.607 of 2012 in O.S.No.129 of 2005 by

learned Principal Senior Civil Judge, Vijayawada wherein the

petition filed by the respondent /plaintiff under Sections 144 and

151 of the Code of Civil Procedure, 1908 (for short 'C.P.C.') with a

prayer for restoration of his possession over the plaint schedule

property was allowed.

2. The facts of the case in nutshell are that the respondent

herein who is plaintiff in the suit has filed a suit for declaration of

title, permanent injunction over the plaint schedule property and

for consequential reliefs. Later the suit was decreed and the

respondent/plaintiff has also filed E.P.No.153 of 2007 for delivery

of the property and the same was delivered to him on 25.06.2009.

Subsequently the respondent/plaintiff has approached the Court

below by filing a petition under Sections 144 and 151 of C.P.C. for

restoration of his possession over the plaint schedule property

alleging that the petitioner herein who is defendant No.1 in the

suit had highhandedly dispossessed the respondent/plaintiff from

the plaint schedule property. The respondent/plaintiff also alleged

that inspite of his best efforts he could not secure his possession.

3. The petitioner/defendant No.1 has filed counter in the said

interlocutory application specifically stating that the plaint

schedule property and E.P. schedule property are not one and the

same. The respondent/plaintiff who has obtained decree tried to

dispossess the petitioner/defendant No.1 from the other properties

in which she is in possession and she never dispossessed the

respondent/plaintiff from the plaint schedule property. As such

she sought for dismissal of the suit.

4. The Court below placed reliance on Md.Shabbir Ahmed and

another Vs.Zarrar Bin Abdulla and others1 and held that in a

decree of permanent injunction where the defendant was

dispossessed subsequently he can be restored to possession under

Section 144 or even under Section 151 of C.P.C. and accordingly

allowed the petition. Aggrieved by the same the petitioner is before

this Court.

5. Heard Smt. K.Jyothi Prasad, learned counsel for the

petitioner. Though the learned counsel for the respondent sought

time on earlier occasions he has not advanced his arguments

when the matter came up on 31.12.2020.

6. Learned counsel appearing on behalf of the petitioner

submits that the Court below failed to take into consideration the

fact that the plaint schedule property is different from the petition

schedule property and in fact it is the respondent/plaintiff who

has tried to dispossess the petitioner/defendant No.1 from the

property which is not covered by the plaint schedule property. He

further submits that an application under Section 144 of C.P.C. is

not maintainable and he relied upon the judgment of this Court in

Ammanabrolu Srinivasulu Reddy vs. Yeturu Bhakthavatsala

Reddy2 and submits that unless and until the dispossession was

through the process of Court the remedy available to the effected

party is to file a suit and not by filing application under Section

144 of C.P.C. He further submits that the decision which the

2007 (1) ALD 32

2004 (5) ALD 433

Court below has relied upon does not apply to the facts of the

present case as in that case the defendant was dispossessed

through the process of the Court.

7. Section 144 of C.P.C. reads thus:

"Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled in 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 part thereof as has been varied, reversed, set aside or modified; 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, reversal, setting aside or modification of the decree or order.

Explanation - for the purposes of sub-section (1) the expression "Court which passed the decree or order" shall be deemed to include

a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;

c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.

2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section(1).

9. A bare reading of Section 144 of C.P.C. makes it clear that

when a decree or order is set aside, reversed or varied in any

appeal, revision or other proceeding, the party entitled to the

benefit of restitution may apply to the Court which passed the

decree or made the order and on such application the Court will

make an order of restitution by placing the parties in possession

which they would have occupied. The whole purport of Section 144

of C.P.C. is that the act of the Court shall not harm anyone. In this

case, the respondent by virtue of decree passed by the Court was

put in possession of the property and after several years he was

dispossessed. At any stretch of imagination the application filed by

the respondent/plaintiff under Section 144 of C.P.C. is not