Restitution

Introduction 

• It means an act of restoring a thing to its proper owner.
• It can also be considered as restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong.
• Section 144 of the Civil Procedure Code, 1908 (CPC) contains provision relating to restitution.

Section 144, CPC

• Section 144 of CPC deals with the application for restitution. It states that-

(1) 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 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 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).

Essentials of Restitution

• Restitution is based on the maxim actus curiae neminem gravabit which means that the court shall harm no one.
• It is based on the principles of equitable principles.
• It does not confer any substantive right.
• It regulates the power of the court which is not discretionary but obligatory.
• It can be granted not only against the party to the litigation but also against his legal representative.
• When restitution could be claimed by an application under Section 144 of CPC, no separate suit shall be brought for such relief.

Conditions for Restitution

Before restitution can be ordered under Section 144 of CPC, the following conditions must be fulfilled:

• Restitution sought must be in respect of the decree or order which had been varied or reversed.
• The party applying for restitution must be entitled to benefit under the reversed decree or order.
• The relief claimed must be properly consequential to the reversal or variation of the decree or order.

Illustrations

• A obtains a decree against B for Rs. 5,000 and recovers the amount in execution. The decree is reversed in appeal. B is entitled to a refund of the amount together with interest up to the date of repayment, though the appellate decree may be silent as to interest.
• A obtains a decree against B for possession of immovable property and in execution of the decree obtains possession thereof. The decree is subsequently reversed in appeal. B is entitled to restitution even though there is no direction for restitution in the decree of appellate court.

Case Laws:

• In Mahjibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai (1965), the Supreme Court held that an application for restitution is an application for execution of a decree.
• In Mekha Ram and Others v. State of Rajasthan & Ors. (2022), the Supreme Court held that Section 144 of CPC provides power to the civil court to relegate the parties to a position that existed prior to the filing of the suit or the case.