2013 AIR CC 3148 (MAD)

Madras High Court

Hon'ble Judge(s): S. Manikumar , J

( A ) Civil Procedure Code (5 of 1908) S. 144 — Restitution of possession — Judgment- debtor deprived possession of property in execution of ex parte decree — Ex parte decree set aside — Judgment-debtor can seek restitution of possession by invoking S. 144 of Code.Therefore, when Section 144, CPC confers a right to seek for restitution of a right or benefit, which is lost, including possession, it is suffice that the judgment-debtor satisfies the three conditions, stated supra and seek for restitution of any right lost, which includes possession and that there is no need to file a separate suit for recovery of possession or for the matter, there is no need to seek for recovery of possession in the suit filed to nullify a decree, which has been erroneously granted. Considering the cardinal principle of equity and justice, in-built in Section 144, CPC, it is suffice that the Judgment-Debtor seeks for a prayer in the subsequent suit, to either nullify the decree, which was erroneously or get the erroneous decree reversed or varied, on appeal against the decree granted by the lower Courts. AIR 1965 SC 1477, AIR 1985 SC 39 and 1888 ILR (10) All 166 Rel. on (Paras68 79 7275)Therefore, when Section 144, CPC confers a right to seek for restitution of a right or benefit, which is lost, including possession, it is suffice that the judgment-debtor satisfies the three conditions, stated supra and seek for restitution of any right lost, w....