RESTITUTION

A RESEARCH MADE BY- Ravi Prakash

- B.A. LL.B

- 1756 (Section: A)

FINAL DRAFT SUBMITTED TO – Dr. Meeta Mohini

A research submitted for fulfillment for the course of Civil Procedure Code, for
attaining the degree B.A. LL.B. (Hons.)

Chanakya National Law University, Nyaya Nagar, Mithapur,

Patna, Bihar 800001

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 DECLARATION

I, Ravi Prakash hereby declare that the project entitled “RESTITUTION” submitted to the
Chanakya National Law University, Patna is a record of bonafide and independent work done
by me under the supervision and guidance of Professor of Civil Procedure Code, Dr. Meeta
Mohini.

All information furnished in the project for scrutiny is the true to the best of my knowledge.
This project consists of secondary data.

Ravi Prakash

Roll no.: 1756

B.A. LL.B.(Hons.)

Section: A

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 ACKNOWLEDGEMENTS

At the outset, I take this opportunity to thank my Dr. Meeta Mohini, Professor of Law from
the bottom of my heart who have been of immense help during moments of anxiety and
torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the administrative staff of CNLU who held the
project in high esteem by providing reliable information in the form of library infrastructure
and database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious time is
unforgettable and highly solicited. Their valuable advice and timely supervision paved the
way for the successful completion of this project.

Words aren’t sufficient to acknowledge the tremendous contributions of various people

involved in this project- as I know ‘Words are Poor Comforters’. I once again
wholeheartedly and earnestly thank all the people who were involved directly or indirectly
during this project making which helped me to come out with flying colours.

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Contents
1. Introduction...................................................................................................................................3
2. Evolution & It’s Scope....................................................................................................................4
3. Doctrine of Restitution..................................................................................................................6
4. Section 144: Application for restitution.........................................................................................7
5. Section 151 Inherent Powers to Grant Restitution:.....................................................................10
6. Role of Judiciary...........................................................................................................................14
7. Limitations...................................................................................................................................18
8. Conclusion...................................................................................................................................21
Bibliography.........................................................................................................................................21

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 1. Introduction

The expression restitution has not been defined in the code, but it is “an act of restoring a
thing to its proper owner.” Restitution means restoring of anything unjustly taken from
another. It provides for putting a party in possession of land, tenement or property, who had
been unlawfully dispossessed, deprived or disseised of it.

In other words, restitution means restoring to a party the benefit which the other party has
received under a decree subsequently held to be wrong. The word restitution in its
etymological sense means restoring to a party on the modification, variation or reversal of a
decree what has been lost to him execution of the decree or in direct consequence of the
decree.

In my final submission, I have dealt with every aspect of Restitution including its meaning,
evolution. The provisions of Restitution provided under various sections of CPC are also be
dealt in length. The project also provide for the landmark cases on the Restitution as well as
a well though conclusion on it and its limitations.

OBJECTIVE:- The aim of the researcher is to present a detailed study of the topic. The
main objective is to know about in what cases & circumstances the provision of restitution is
triggered under CPC.

HYPOTHESIS:- this term is not exhaustive and, therefore, even if the case does not fall
within the strict term of Section 144 of the Code, it is always at the discretion of the Court to
grant relief of restitution.

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 2. Evolution & It’s Scope

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. 

Restitution is an ancient institution which has had an established position in the history of law
and justice. It has its historical origin in the middle Ages and can mainly be found in the
Germanic Common laws. Oxford English Dictionary defines ‘restitution’ as “an act of
restoring a thing to its proper owner”. 

The word in its etymological sense means ‘restoring to a party on the modification, variation
or reversal of a decree or order, what has been lost to him in execution of decree or order of
the court or in direct consequence of a decree or order’. 

To cite Black’s Law Dictionary, the term has been defined in three senses, viz. (1) return or
restoration of some specific thing to its rightful owner or status; (2) compensation for benefits
derived from a wrong done to another; (3) compensation or reparation for the loss caused to
another. As far as Indian Code of Civil procedure is concerned, though the term “restitution”
has not been defined in the Code, it has got its statutory recognition in the section 144.1

Section 144 of the code embodying the doctrine of restitution does not confer any new
substantive right to the party not available under the general law. The section merely
regulates the power of the court in that behalf. It is the paramount duty of all courts to ensure
that they do no injury to any litigant.

The expression “ the act of the Court” does not mean merely the act of the primary or trial
court or intermediate court of appeal but the act of the court as a whole from the lowest court
which entertains the matter to the highest court which finally disposes the case.

Moreover, the section is not exhaustive and, therefore, even if the case does not fall within
the strict term of Section 144 of the Code, it is always at the discretion of the Court to grant
relief of restitution.

1
Black’s Law Dictionary, seventh end, p1315, as quoted in Southern Eastern Coalfields Ltd. V. State of Madhya
Pradesh AIR 2003 SC 4482

6
Further Since the object of the doctrine is to shorten litigation and to afford speedy relief to
the party adversely .affected, and merely lays down a procedure, the provision should be
construed liberally.

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 3. Doctrine of Restitution

In Halsbury’s Laws of England, it is stated, 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.2

The doctrine of restitution contemplates the case where property has been received by a
decree-holder in execution of a decree, and the decree, or part thereof, is subsequently varied
of reversed on appeal by the judgement-debtor, or even in a separate suit or otherwise, as for
instance, on an application under the Bengal Money Lenders Act or Agriculturist Relief Act.

The principle of restitution has been statutorily recognised in s 144 of the Code of Civil
Procedure. It does not confer any new substantive right to the party not available under the
general law, but merely regulates the power of the court in that behalf. It is the paramount
duty of all court to ensure that they do no injury to any litigant.

2
Halsbury’s Law of England (4th Edn.) at p. 434.

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 4. Section 144: Application for restitution

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 order, 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:
A. For the purpose of sub-section (1) the expression “Court which passed the decree or order”
shall be deemed to include,
B. Where the decree of order has been varied or reversed in exercise of appellate or revisional
jurisdiction, the court of first instance;
C. Where the decree or order has been set aside by a separate suit, the court of first instance
which passed such decree or order;
D. 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.

3. 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).

Section 144 enables the successful party to be placed in status quo ante and empowers the
court to order restitution when a decree or an order is varied or reversed in any appeal,
revision or other proceeding.3

There was however a conflict of judicial opinion as to whether the provision of S. 144
applied to cases also where a decree was set aside or modified otherwise than on an appeal.

3
http://www.legalservicesindia.com/article/2140/Restitution-W.r.t.-to-Civil-Procedure-Code-1908.html

9
The amendment made in S. 144 clarifies the position that it is applicable to such cases also
where a decree is set aside or modified otherwise than on an appeal.

Under the Code of Civil Procedure (Amendment) Act 1956, the benefit of S. 144 has been
enlarged so as to comprise within its orbit not only a decree but also an order, with the result
that upon the ultimate reversal or variation of a judgment or order the section enjoins that the
court of first instance shall on the application of the party concerned cause restitution to be
made so as to place the parties in the position which they would have occupied but for the
erroneous judgment or order.

S.M. Deshmukh v. Ganesh Krishnaji Khare: The doctrine of restitution is based on the

principle that the first and highest of the duties of all the Courts is to take care that the act of
the Court does no injury or wrong to the suitors. The duty or jurisdiction of the Court to grant
restitution is inherent in the general jurisdiction of the courts to act fairly and rightly in the
circumstances towards all parties involved4

Requisite conditions for the applicability of restitution:

· The restitution sought must be in respect of that decree or order which had been varied or
reversed;
· The applicant has lost, or been deprived of, something by reason of the decree or order
which has been subsequently varied or reversed;
· The party applying for restitution must be entitled to a benefit under a reversing decree or
order;
· The relief claimed must be properly consequential on such variation of the decree or order;
and
· The applicant must be a party to the litigation which has terminated according to law.
· If the aforesaid conditions are satisfied, it gives no choice or discretion to the Court, and the
only course it has to follow is to order restitution to the party which had suffered loss on
account of the erroneous decree or order.

Section 144, Civil Procedure Code, imposes no limitations on the rights of the judgment-
debtor to get back the benefit, to which he is entitled under the appellate Court’s decree,
which has reversed or varied the trial court’s decree. On a perusal of S. 144, it is obvious that

4
AIR 1975 Bom 82, (1974) 76 BOMLR 405

10
the question whether the balance of convenience is in his favour or not, is irrelevant for the
purpose of granting restitution.

Section 144 obviously consists of two parts. The first part postulates the variation or reversal
of a decree or an order in an appeal. The second part is more important. Restitution can be
granted on the application of any party entitled to any benefit by way of restitution, and it has
to be determined by the court granting restitution that the party who has given the application
is entitled to the benefit of restitution.

Such an inference cannot be drawn in favour of a person who is a mere trespasser. Where the
lower appellate court as well as the High Court held that the sale deed in favour of the
appellant was null and void and no rights were conferred on him by virtue of the same, the
appellant was a mere trespasser and he did not fulfil the second condition of section 144,
C.P.C.

In S.N. Banerji v. Kuchwar Lime and Stone Co. Ltd., it was held that where the persons
who have been dispossessed were found to be trespassers and persons in subsequent
possession were lawfully in possession by virtue of a valid lease in their favour, it was not
necessary for the ends of justice that the trespasser should be restored to possession though
they might succeed in a suit for possession. That case was followed in Mahaden Prasad v.
Calcutta Dyeing and Cleaning Co.5

5
(1942) 44 BOMLR 324

11
 5. Section 151: Inherent Powers to Grant Restitution

Sec 151. Saving of inherent powers of court.-

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the
court to make such orders as may be necessary for the ends of justice, or to prevent abuse of
the process of the court

Explanation:
It is a saving clause and only gives legislative recognition of an age-old and well established
principle that every court has inherent power to do that real and substantial justice between
the parties for the administration of’ which alone it exists. It does not confer any substantive
right on parties but is meant to get over the difficulties arising from rules of procedure.

Section 15l gives no right to a party to make an application. It gives power to the court to
pass such orders as it thinks fit. Section 151 is really intended to prevent courts from being
rendered impotent by any omission in the Code; but it is not intended to override the main
enactment of the law.

The court has inherent powers, in order to advance the cause of justice and not to allow
justice to be defeated, to issue orders in the nature of even injunctions. Therefore, it cannot be
said that the court has no power to issue stay of a suit under its inherent powers unless the
case clearly falls within the four corners of Order XXXIX, Rules 1 and 2.

The Code of Civil Procedure is not exhaustive and S. 151 does not confer any new powers
but only makes statutory recognition of the inherent power of the court to do certain things ex
debito justitiae (to act as justice demands). It is in the ends of justice to avoid needless
expense and inconvenience to Parties. So the court will not refuse relief merely because the
application there for is made under a wrong section or because there is some technical defect.

The abuse of the process of the court may be the result of an act of $he court itself (default its
officers) or may be done by the party (misrepresentation). In all such cases the court is
empowered to remedy the wrong.

The inherent powers exercised under S. 151, C.P.C. are discretionary. In considering the
question of propriety in invoking the power, the court should take into account several
matters, some of which are the complexity of the question involved, availability of a more

12
complete and efficacious remedy by means of a suit and the apparent justice of the claim.
These are not exhaustive but merely illustrative. They would vary according to the facts and
circumstances of each case. No hard and fast rule can be laid down.

Where the averments in the application did not make out a case as to how the exercise of the
inherent power of the court was necessary for the ends of justice or to prevent abuse of the
process of the court and the applicant did not come to the court with clean hands and had
suppressed the facts and the case involved complexity of facts and the justice of the claim
was adverse to the applicant, it was held that there was no case for the exercise of inherent
powers in favour of the applicant.

Where the possession has been taken forcibly by a landlord/defendant during the pendency of
the proceedings, i.e., when the application for temporary injunction restraining
landlord/defendants from interfering with possession is dismissed by the trial court and
before filing the appeal, even though S. 144 of the Code of Civil Procedure may not strictly
apply, the court in exercise of its inherent jurisdiction under S. 151 can grant restitution. ‘By
invoking the inherent jurisdiction the Court would be justified to do justice and put back the
parties in the same position in which they were, but for the order of the trial court.

The Court has power and jurisdiction under section 151 of the Code to grant police help to
implement its order of injunction.

Illustrations of Inherent Powers:

The court has an inherent power under S. 151, C.P.C.:

· To consolidate suits and appeals including appeals to the Supreme Court;

· To postpone the hearing of suits pending the decision of a selected action or where some of
the issues are common in another pending suit;
· To stay cross-suits on the ground of convenience;
· To allow a defence in forma pauperis,
· To grant restitution apart from the provisions of S. 144, C.P.C.; Where the court rectifies a
mistake in a decree in the exercise of its inherent powers, it has jurisdiction to order
restitution of any benefit which may have been received wrongly by the persons who were
not entitled to such benefits but for the mistake in the decree;
· To add a party or to transpose parties, or where the appeal is filed against dead persons to

13
allow the appellant to add legal representatives of the deceased as parties in a proper case;
· To entertain the application of a third person to be made a party;
· To punish summarily by imprisonment for contempt’s of court committed by the
publication of a libel out of court;
· To stay the drawing up of the court’s own orders or to suspend their operation, if the
necessities of justice so require;
· To stay the carrying out of a preliminary order pending appeal;
· To amend decrees by correcting errors in cases not covered by S. 152. The court has an
inherent jurisdiction to rectify its own mistake and to do justice between the parties where
injustice has been done to them due to the mistake of the court;

Gangadhar v. Raghubar Dayal6:

Broadly speaking, restitution is the right of a party to being placed in the same position which
he occupied before the decree or order which has subsequently been varied or reversed was
executed. Suppose a landlord files a suit for ejectment against his tenant. The suit is decreed
ex parte and in execution of this ex parte decree the tenant is ejected and the landlord is put in
possession.

Subsequently, the ex parte decree is set aside. The tenant can certainly without waiting for the
final decision in the suit apply for being put back in possession, i.e., being placed in the same
position which he occupied before he was ejected in execution of the ex parte decree which
has subsequently been set aside. It is so because the very setting aside of the ex parte decree
entitled the tenant to be put back in possession.

Statutory Provision
The power of a court to grant restitution is not confined to the cases covered by the
provisions of this section. It extends also to cases which do not come strictly within s 144.
Under s 151 courts has inherent power to order restitution irrespective of s 144. Where the
standard rent fixed by the Rent Controller under the West Bengal Premises Rent Control Act
1950, was reduced in appeal, it was held that a claim for restitution of the excess rent paid
under the order of the controller was not maintainable under this section but it could be
sustained on general principles of restitution. The principle of the restitution will be of no
avail as against a party to the suit who get the property otherwise than under the decree or the

6
AIR 1975 All 102

14
order of the court. Hence, where the petitioner gets the possession of the property under
executive order, its restitution cannot be ordered.

15
 6. Role of Judiciary

Judicial Pronouncements
The Lordship of the Privy Council said: “It is the duty of the court under section 144 of the
Civil Procedure Code to place the parties in the position which they would have occupied for
such decree or such part thereof as has been varied or reserved. Nor indeed does this duty or
jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the
court to act rightly and fairly according to the circumstances towards all parties involved.”

The Allahabad High Court has however taken the view that a case for restitution would fall
within the terms of s 144, even when the decree is set aside in a separate suit, or where the
court itself sets aside its own ex parte decree. This view has now been confirmed by the
Amendment Act 1976 which declares in express terms, that the restitution is available in
cases where a decree is set aside or modified in another subsequent suit filed in another court
for that purpose.

The High Courts of Madras, Madhya Pradesh, and Patna have also held that s 144 will apply
when the decree or order is reversed, otherwise than in appeal as in an independent
proceeding or by the legislation. When a sale was set aside on an application under O 21, r
90, the judgement-debtor was awarded mesne profits under s 151 from the decree-holder
purchaser for the period he was in possession.

Land Mark Cases

Cases on Section 144

Rodger v. Comptoir descompte de Paris:

“One of the first and highest duties of all courts is to take care that the act of the court does
no injury to any of the suitors and when the expression, the act of the court is used, it does not
mean merely the act of the primary court, or of any intermediate court of appeal, but the act
of the court as a whole from the lowest court which entertains jurisdiction over the matter up
to the highest court which finally disposes case.”7

7
Rodger v. The Comptoir D'Escompte de Paris and The Chartered Bank of India, Australia and China
Judicial Committee of the Privy Council 1869

16
Jai Berham v. Kedar Nath Maewari,
A sale in execution of a decree as set aside on the grounds that the sale certificate comprised
property different from that which was attached. The property was purchased by a stranger to
the decree, and the price paid by him in to court was applied towards satisfaction of the
decree. The judgement-debtor applied for possession8

Amba Lal v. Ramgopal,

A, in execution of a money decree, brought property to sale as of his judgement –debtor and
purchased himself. B and C who held decrees against the same judgement-debtor, applied for
rateable distribution. A, therefore, paid the sale proceeds into court and they were rateably
distributed between A, B and C. Co-sharers of the judgement then obtained a decree
exempting part of the property from the operation of the sale. The amount available for
rateable distribution was, therefore, reduced and A was entitled to a proportionate refund
from B and C.9

S. Prabhavathi vs Rohini Kilaru and Anr.

The Supreme Court while observing that s 144 of CPC incorporates only a part of the general
law of restitution and not exhaustive, laid down as under:

“The jurisdiction to make restitution is inherent in every court and will be exercised
whenever the justice of the case demands. It will be exercised under inherent powers where
the case did not strictly fall within the ambit of Section 144, Section 144 opens with the
words "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...."10

Jamaluddin v. Mirza Quader Baig,

It was held that for restoration of possession to the tenant, who was dispossessed by the
landlord from the suit premises forcibly in violation of the orders of interim injunction, there
is no necessity of filing a petition under Section 144 of CPC. The Court can restore
possession in exercise of its inherent powers under Section 151 of CPC.11 Similarly,

8
(1923) 25 BOMLR 643
9
AIR 1933 All 218
10
2006 (5) ALD 606, 2006 (5) ALT 264
11
1995 (1) ALT 115

17
In Sujit Pal v. Prabir Kumar Sun,
It was held that when the plaintiff in a suit for permanent injunction and declaration of
tenancy was forcibly dispossessed in violation of the interim injunction, the civil Court can
invoke its inherent power to grant temporary mandatory injunction by directing the police to
restore possession. The inherent jurisdiction to pass an order in restitution can be exercised
by a persona designate entrusted with functions of a court as for example by a district munsiff
to whom the decree is transferred for execution under s 66 of the Madras Village Courts Act
1889.12

Cases on Section 151:

Ghuznavi v. Allahabad Bank Ltd:

The exercise of such inherent power can only be invoked where the court is satisfied that the
provisions of the Code are not sufficient to meet the exigencies of the case: Justice Asutosh
Mookerjee in the case of Ghuznavi v. Allahabad Bank Ltd)

Hukam Chand v. Kamalanand Singh:

Justice Woodroff in Hukum Chand v. Kamalanand Singh, observed with reference to the
applicability of S. 151 of the Code:

“I am not aware of any authority which has laid down that the Code of Civil Procedure is
exhaustive. The essence of a Code no doubt is to be exhaustive on the matters in respect of
which it declares the law, on any point specifically dealt with by it. In respect of such matters
the court cannot disregard or go outside the letters of the enactment according to its true
construction.

The Code does not affect the power and duty of a court where no specific rule exists to act
according to justice, equity and good conscience, though in exercise of such power it must be
careful to see that its decision is based on the sound general principles and is not in conflict
with them or the intention of the Legislature.13

“The court has, therefore, in many cases where the circumstances require it acted upon the

12
AIR 1986 Cal 220, 90 CWN 342
13
(1906) ILR 33 Cal 927

18
assumption of the possession of an inherent power to act ex debito justitiae and to do that real
and substantial justice for the administration of which alone it exists.”

It has, therefore, to be noted that the Code is not exhaustive and in matters with which it does
not deal the court will exercise an inherent jurisdiction to do justice between the parties as
warranted under the circumstances and which the necessities of the case require.

Padam Sen V. The State of Uttar Pradesh:

It has been held by their lordships of the Supreme Court in Padam Sen v. The State of Uttar
Pradesh, that the inherent powers of the court are in addition to the powers specifically
conferred on the court by the Code.

They are complementary to those powers and therefore it must be held that the court is free to
exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those
powers is not in any way in conflict with what has been expressly provided in the Code or
against the intentions of the Legislature. It is also well recognised that the inherent power is
not to be exercised in a manner which will be contrary to or different from the procedure
expressly provided in the Code.14

14
1961 AIR 218, 1961 SCR (1) 884

19
 7. Limitations

The limitations of the inherent power may be noted, In the first place, the court has no
inherent power to do what is prohibited by the Code so as to defeat a statutory provision of
the law of the land. Section 151, C.P.C. does not invest the court with jurisdiction over
matters which are excluded from its cognizance.

Thus no appeal can be allowed from a non-appealable order. Similarly, when once a
judgment is signed it cannot be altered or added to save as provided by S. 152 or on review.
In the same way an ex parte decree cannot be set aside when no case has been made out
within the meaning of Order IX, Rule 13 of the Code.

The inherent power is not to be exercised where the applicant has remedy provided elsewhere
in the Code but has neglected to avail himself of it.

The inherent power must not be exercised so as to come in conflict with the general
principles of law. The court cannot entertain a suit arising in a place where it has no
jurisdiction, nor can it acting under S. 151 recall its own previous order or hear appeal from
its own judgment except as provided in order to cure a legal defect.

The inherent power vested in the court is discretionary. The mere fact that there is remedy
will not attract the provisions of S. 151, C.P.C., unless it is necessary for the ends of justice or
to prevent abuse of the process of the court.

In exercising jurisdiction under its inherent powers, the court is influenced by the justice of
the case in favour of the party who invokes its aid. Where the party has been guilty of laches
or has been negligent in prosecuting his remedy, a court of law would be most reluctant to
exercise its inherent powers in his favour. Equity aids the vigilant and not the indolent.15

If there be specific provision in the Code, which would meet the necessities of the case,
inherent powers cannot be invoked.

The court is not to invoke its inherent powers under S. 151 for the purpose of impleading the
legal representatives of the deceased respondent if the suit had abated on account of the
appellant not taking appropriate steps within time to bring the legal representatives of the
deceased party on the record and when its application for setting aside the abatement is not
15
https://www.lawteacher.net/free-law-essays/contract-law/restitution-under-civil-procedure-code-contract-
law-essay.php

20
allowed on account of its failure to satisfy the court that there was sufficient cause for not
impleading the legal representatives of the deceased in time and for not applying for the
setting aside of the abatement within time.

It is not permissible to invoke the inherent jurisdiction of the court as defined by S. 151 in
cases where the applicant has his remedy provided elsewhere in the Code and has neglected
to avail himself of it. So also the inherent jurisdiction vested in courts is to be exercised only
to further the ends of justice and not to create complication in a cause by introducing matters,
the adjudication of which may be impossible without reception of additional evidence.

The inherent power of a court is in addition to and complementary to the powers expressly
conferred under the Code. But that power will not be exercised if its existence is inconsistent
with, or comes into conflict with, any of the powers expressly or by necessary implication
conferred by the other provisions of the Code.

Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does
contain specific provisions which would meet the necessities of the case such provisions
should be followed and inherent jurisdiction should not be invoked.

The Court cannot make use of the special provisions of S. 151 of the Code where a party had
his remedy provided elsewhere in the Code and he neglects to avail himself of the same.
Further, the power under S. 151 of the Code cannot be exercised as an appellate power.

Where a compromise decree was challenged and S. 151, C.P.C. was invoked on the ground
that the compromise decree was defective as the parties did not sign the compromise or that
the terms of the compromise were vague or uncertain, it was held that the petition invoking
inherent powers under S. 151 was not maintainable and the proper remedy is to prefer an
appeal.16

Even where a superior court issues a stay order, if the decree is executed before the stay order
of the superior court reaches the original court, the stay order becomes inoperative. The same
principle will apply in respect of the order passed by the same court regarding stay where
decree for delivery of the possession is clearly executed. In such a case no inherent
jurisdiction is vested in the trial court to restore the possession of land already given to the
decree-holder.

16
https://lawtimesjournal.in/restitution-under-the-civil-procedure-code/

21
It is true that there is no specific provision from which it can be gathered that compulsion can
be exercised against a person to produce documents. Such power, however, cannot be said to
be absent with the court. Section 151 is the reservoir of that power where under inherent
powers can be exercised by the court to make such order as may be necessary for the ends of
justice or to prevent abuse of the process of the court.

Obviously, in order to exercise inherent powers, facts and circumstances of each case would
have to be seen by the court if it comes to the view that a person purposely, contumaciously
and maliciously was withholding documents required to be produced by it. There is no reason
why the civil court cannot in that situation to further the object of Ss. 30 and 32, Civil
Procedure Code, exercise the inherent powers under S. 151, C.P.C.

Such recourse can be taken only when it is found that the relief asked for cannot be granted
under the provisions under which the jurisdiction of the Court or Tribunal is invoked, much
less when the result would be to deprive the party of a right of appeal provided against the
order passed under such a provision.17

17
http://www.shareyouressays.com/knowledge/principle-of-the-doctrine-of-restitution-section-144-of-c-p-
c/119329

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 8. Conclusion

The principle of restitution is a natural form of justice and Section 144 is merely an
embodiment of that principle taking a statutory form. Restitution provides that the benefit
obtained by a party under a decree should be restored to the other party because the decree
has become infructuous on account of a subsequent decree. The court has been given wide
powers to pass any orders in an application of restitution that it may deem fit to meet the ends
of justice.

Bibliography
1.  C.K.Takwani, Civil Procedure with Limitation Act 1963
2. Mulla, The Key To Indian Practice (A Summary Of The Code Of Civil Procedure)
3. Dr. Rega Surya Rao, Lectures on The Code of Civil Procedure and The Limitation Act 
4. Dr. S.R. Myneni, Code of Civil Procedure & Limitation Act

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