Case Note & Summary
The petitioner, Smt. Grover Navill Cardamaster, filed a writ petition under Article 227 of the Constitution of India challenging the dismissal of her application for restitution under Section 144 of the Code of Civil Procedure, 1908 (CPC). The background is that the respondents (original plaintiffs) had obtained a decree for possession against one Mino R. Kateli in a suit. When the decree was executed, the petitioner obstructed, leading to obstructionist proceedings under Order XXI Rule 97 CPC. On 14th January 2008, the Court of Small Causes passed a decree in the obstructionist notice directing the petitioner to hand over possession, and she was dispossessed. The petitioner then filed a Misc. Notice to set aside that decree, which was allowed on 28th August 2008, setting aside the decree and restoring the obstructionist notice to the file. Thereafter, the petitioner filed a Misc. Notice for restoration of possession under Section 144 CPC, which was dismissed by the trial court. Her appeal to the Division Bench of the Court of Small Causes was also dismissed. Hence, the present writ petition. The petitioner argued that since the decree under which she was dispossessed was set aside, restitution under Section 144 must follow as a matter of right. The respondents contended that the proper remedy was under Order XXI Rule 99 CPC, and that the petitioner was never in possession as she resides in Australia. The High Court held that restitution under Section 144 is not automatic; the court has discretion to consider the circumstances. Since the original obstructionist notice was restored and pending, the rights of the parties were yet to be adjudicated. The court found no error in the orders of the courts below and dismissed the writ petition.
Headnote
A) Civil Procedure - Restitution - Section 144 CPC - Order XXI Rule 97 CPC - The petitioner sought restitution of possession after the decree passed in obstructionist proceedings under Order XXI Rule 97 CPC was set aside. The court held that restitution under Section 144 is not automatic and the court has discretion to consider the equities and the pendency of the original obstructionist notice. Since the obstructionist notice was restored and pending, the question of possession was sub judice, and restitution could not be granted without adjudication of rights. (Paras 2-6)
B) Civil Procedure - Maintainability of Appeal - Order XXI Rule 99 CPC - The respondents argued that the petitioner's remedy was under Order XXI Rule 99 CPC, not Section 144. The court did not decide this issue as the petition was dismissed on other grounds. (Para 5)
Issue of Consideration
Whether a party is entitled to restitution under Section 144 of the Code of Civil Procedure, 1908, as a matter of right, when the decree under which possession was obtained has been set aside, but the underlying obstructionist proceedings under Order XXI Rule 97 CPC are still pending.
Final Decision
The High Court dismissed the writ petition, holding that the order of restitution under Section 144 CPC is not automatic and the courts below did not err in dismissing the application as the obstructionist notice was pending and rights were sub judice.
Law Points
- Restitution under Section 144 CPC is not automatic upon setting aside of a decree
- court must consider equities and pending proceedings
- Order XXI Rule 97 CPC
- Order XXI Rule 99 CPC
- Section 144 CPC
- Article 227 of the Constitution of India
Case Details
2010 LawText (BOM) (01) 11
WRIT PETITION NO.7311 OF 2009
Mr. K.R. Zariwalla i/by Deepak T. Raut for the petitioner, Mr. C.N. Chavan for the respondents
Smt. Grover Navill Cardamaster
Dadabhoy Vikas Maherjibhoy Patel & Ors.
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging dismissal of application for restitution under Section 144 CPC.
Remedy Sought
Petitioner sought restoration of possession of suit premises after decree under which she was dispossessed was set aside.
Filing Reason
The petitioner's application for restitution under Section 144 CPC was dismissed by the trial court and the appeal was dismissed by the appellate bench of the Court of Small Causes.
Previous Decisions
The Court of Small Causes passed a decree on 14th January 2008 in obstructionist notice directing petitioner to hand over possession. That decree was set aside on 28th August 2008, and the obstructionist notice was restored. The petitioner's application for restitution under Section 144 was dismissed by the trial court and the appeal was dismissed by the appellate bench.
Issues
Whether restitution under Section 144 CPC is automatic upon setting aside of a decree?
Whether the courts below erred in dismissing the application for restitution when the decree under which possession was obtained was set aside?
Submissions/Arguments
Petitioner argued that since the decree dated 14th January 2008 was set aside, restitution under Section 144 must follow as a matter of right, and the courts below erred by going into merits of rights.
Respondents argued that the proper remedy was under Order XXI Rule 99 CPC, not Section 144, and that the petitioner was never in possession as she resides in Australia; restitution cannot be granted without adjudication of rights in the pending obstructionist notice.
Ratio Decidendi
Restitution under Section 144 of the Code of Civil Procedure, 1908, is not an automatic consequence of setting aside a decree. The court has discretion to consider the equities and the pendency of other proceedings. Where the original obstructionist notice under Order XXI Rule 97 is restored and pending, the question of possession is sub judice, and restitution cannot be granted without adjudication of the rights of the parties.
Judgment Excerpts
The submission of the learned counsel appearing for the petitioner is that an order passed on a notice under Rule 97 of Order XXI of the said Code is a decree and accordingly a decree was purportedly passed against the petitioner by the Court of Small Causes on 14th January 2008.
The learned counsel appearing for the respondents submitted that the remedy of the petitioner was to apply for restoration of possession under Rule 99 of Order XXI of the said Code.
The order of restitution under Section 144 of the said Code is not automatic.
Procedural History
The respondents filed a suit for possession against Mino R. Kateli and obtained a decree. In execution, the petitioner obstructed. The respondents took out obstructionist notice under Order XXI Rule 97 CPC. On 14th January 2008, the Court of Small Causes passed a decree directing the petitioner to hand over possession, and she was dispossessed. The petitioner filed a Misc. Notice to set aside that decree, which was allowed on 28th August 2008, setting aside the decree and restoring the obstructionist notice. The petitioner then filed a Misc. Notice for restoration of possession under Section 144 CPC, which was dismissed by the trial court. The petitioner appealed to the Division Bench of the Court of Small Causes, which dismissed the appeal. Hence, the petitioner filed the present writ petition under Article 227 of the Constitution of India.
Acts & Sections
- Code of Civil Procedure, 1908: Section 144, Order XXI Rule 97, Order XXI Rule 99
- Constitution of India: Article 227
