AIR 2019 BOMBAY 274 ::2019 (5) ABR 558 ::AIROnline 2019 Bom 783 ::(2020) 2 Civil Court Case 350 ::(2020) 2 All MR 699 (Bom) ::2020 (2) Civil Court Cases 350 ::2020 (2) Bom CR 57 ::2020 (2) All MR 699 ::(2020) 1 Mah LJ 426

Bombay High Court

Hon'ble Judge(s): Sandeep K. Shinde , J

Civil P.C. (5 of 1908) , S.144— Restitution of possession - Appellate court setting aside decree in counter claim and directing party to restore possession to opposite party - Possession of party cannot be protected. In terms of Section 144 of the CPC, if any decree or order of the Court is varied or reversed, in any appeal, revision or other proceedings or is set aside or is modified in any suit instituted for the purpose, the Court which passed the decree or order, shall on application of any party entitled to any benefit by way of restitution or otherwise, caused such restitution to be made and place the parties in the same position which they would have occupied but for such decree or order. The doctrine of restitution implies that where a party derives benefit by virtue of a decree or order which was later set aside or modified, has to surrender the said benefit derived by him. The underlying principle is that on the date when the restitution application was filed the decree which was executed was reversed or modified and, therefore, status quo ante has to be restored as no litigant should suffer on account of a wrong order passed by Court. In order that this section may apply, three conditions are necessary to be satisfied- (1) the restitution sought must be in respect of the decree or order which had been varied or revers....