Restitution under CPC by Vanshika Chauhan at LEXCLIQ

If we exactly look into the Code of Civil Procedure, we can never find the elaborative meaning of the tern Restitution but if we go to the dictionary meaning of the said term, it states, the act of restoring a thing to its proper owner. Take for example, when any person who should have a possession over the land but he/she is unlawfully dispossessed from the possession, so the rule of restitution comes into play. In other words, when the benefit is restored to the party who having the right over such benefit.

In a more elaborative context, the Doctrine of restitution implies that when a decree is reversed, the law imposes the obligation on the party to suit who received unjust benefit from the erroneous decree formerly passed to restore the benefit to the real entitled person i.e. decree holder in subsequent suit. The obligation to restore arises automatically on the reversal or modification of such erroneous decree, while the court in making the restitution is bound to restore the benefit as much as can be restored to the subsequent decree holder from former decree holder. The court is bound to see that if a person is by mistake of the court is harmed then the court is bound to restore that person to the position he would have occupied. On the other hand, it is the obligation too on the subsequent judgment debtor to restore any benefit made to him by the former erroneous judgment. Here the duty arises of the court to enforce such obligation unless it is shown that if restitution would be done, it will be antithesis to the real justice of the case.

“Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep.

Section 144 in the Code of Civil Procedure deals with the Doctrine of Restitution. It also states that the section does not give the substantive right. It merely regulates the power of the court. Moreover, the jurisdiction to make restitution is inherent in every court and can be exercised whenever justice of the case requires.

Section 144 CPC is not exhaustive in nature as this section is only a part and parcel of the law of restitution and this particular rule is based upon justice and equity and therefore the applicability of this rule is not confined to the cases which are covered in any statutory provisions.

The doctrine of restitution is critically based upon the maxim “actus curiae neminem gravabit”, i.e. any act of the court should not harm anyone. Moreover it is the primary duty of the court to do no harm to the suitors and the court should always be vigilant over the powers that are given to the court. Whenever any party received the benefit out of erroneous judgment, he is under the obligation to repay the benefit to the person who lost it and such duty to enforce the obligation is upon the court to see at the end whether the benefit has been restored or not. A wrong should never be alive and therefore this rule is in existence.

The jurisdiction to grant restitution is not only confined or limited to the cases given under Section 144 rather as already stated in the text, the power of the court is inherent to order restitution in cases whenever the question of justice demands. So we can interpret that the power of the court can supervene over all cases irrespective whether the case is mentioned in Section 144 or not.

Doctrine of restitution with respect to res-judicata: If an application is made before the court and that application is subsequently dismissed the doctrine of res judicata shall apply and the subsequent application for restitution shall be barred and shall not be maintainable but if such dismissal was on the ground of some technical discrepancies then res-judicata shall not bar another application to be produced before the court for seeking restitution.

Doctrine of restitution with respect to appeals: An order under Section 144 is has been declared to be deemed decree under Section 2(2) CPC therefore an appeal lies under Section 144.

Doctrine of restitution with respect to revision: An order under Section 144 is appealable therefore no revision is maintainable under the court of law but if an order under section 144 does not fall within four corners of  Section 144 then a revision can be made.

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