The Andhra Pradesh High Court has clarified that Section 144 of the Code of Civil Procedure (CPC) mandates restitution of possession when an ex parte decree is set aside, even if there is a dispute regarding the property's identity. The Court remanded the matter for fresh consideration, emphasizing that the trial court must examine the bailiff’s report and delivery warrant to determine the exact property from which the defendant was dispossessed.
Background & Facts
The Dispute
The petitioner, Laggisetti Murlidhar, was dispossessed of his property pursuant to an ex parte decree passed in O.S. No. 683 of 2018 filed by the respondent, Maddala Mani, for eviction and recovery of vacant possession. The ex parte decree was later set aside on 23.07.2021 in I.A. No. 52 of 2021, prompting the petitioner to file an application under Section 144 CPC for restitution of possession.
Key Facts
- The respondent filed O.S. No. 683 of 2018 for eviction of the petitioner from the plaint schedule property.
- The petitioner was set ex parte, and an execution petition (E.P. No. 8 of 2021) was filed under Order 21 Rule 36 CPC for delivery of possession.
- Possession of the property was delivered to the respondent on 03.02.2021, and the execution petition was disposed of on 15.03.2021.
- The ex parte decree was set aside on 23.07.2021 in I.A. No. 52 of 2021.
- The petitioner filed I.A. No. 476 of 2022 under Section 144 read with Section 151 CPC seeking restitution of possession, which was dismissed by the trial court on 23.11.2024.
Procedural History
- 15.03.2016: Respondent files O.S. No. 683 of 2018 for eviction.
- 03.02.2021: Possession delivered to respondent pursuant to ex parte decree.
- 15.03.2021: E.P. No. 8 of 2021 disposed of, recording delivery of possession.
- 23.07.2021: Ex parte decree set aside in I.A. No. 52 of 2021.
- 12.06.2022: Petitioner files I.A. No. 476 of 2022 for restitution under Section 144 CPC.
- 23.11.2024: Trial court dismisses I.A. No. 476 of 2022.
- 28.02.2025: Petitioner files Civil Revision Petition No. 707 of 2025 before the High Court.
The Parties' Positions
Petitioner’s Contention
- The petitioner argued that since possession was taken pursuant to an ex parte decree later set aside, Section 144 CPC mandates restitution of possession.
- He contended that the trial court erred in dismissing the petition on the ground that the petition schedule property and plaint schedule property were different.
- He relied on a judgment in A.S. No. 92 of 2003 to establish his ownership of the petition schedule property.
Respondent’s Contention
- The respondent argued that Section 144 CPC applies only to the original owner of the property, and the petitioner, not being the owner, was not entitled to restitution.
- She contended that since the decree was not varied or modified but merely set aside, the doctrine of restitution was inapplicable.
- She asserted that the petition schedule property and plaint schedule property were distinct, and the trial court rightly dismissed the petition due to lack of consensus ad idem.
Relief Sought
The petitioner sought restitution of possession of the property from which he was dispossessed on 03.02.2021 pursuant to the ex parte decree.
The Legal Issue
The central question was whether Section 144 CPC mandates restitution of possession when an ex parte decree is set aside, even if there is a dispute regarding the identity of the property from which possession was taken.
Arguments Presented
For the Petitioner
- The petitioner contended that Section 144 CPC is mandatory and applies whenever possession is taken pursuant to an ex parte decree later set aside.
- He argued that the trial court erred in dismissing the petition without examining the bailiff’s report and delivery warrant, which would establish the exact property from which he was dispossessed.
- He relied on the principle that restitution is a consequential relief to restore parties to their original position.
For the Respondent
- The respondent argued that Section 144 CPC applies only to the original owner of the property, and the petitioner, not being the owner, was not entitled to restitution.
- She contended that since the decree was not varied or modified but merely set aside, the doctrine of restitution was inapplicable.
- She asserted that the petition schedule property and plaint schedule property were distinct, and the trial court rightly dismissed the petition due to lack of consensus ad idem.
The Court's Analysis
The Court examined the scope of Section 144 CPC, which provides for restitution when a decree or order is varied or reversed. The Court observed that once an ex parte decree is set aside, the court is empowered to reverse the actions taken during execution, restoring the party to their original position.
"If an ex parte decree is set aside, the defendant (tenant) can file a petition under Section 144 of the Code of Civil Procedure 1908, for restitution of possession. Once an ex parte decree is set aside under Order 9 Rule 13, the court is empowered to reverse the actions taken during execution, restoring the party to their original position."
The Court noted that the petitioner was dispossessed pursuant to an ex parte decree, which was later set aside. Thus, he was entitled to restitution of possession under Section 144 CPC. However, the Court observed that there was a dispute regarding the identity of the property from which the petitioner was dispossessed. The petition schedule property and the plaint schedule property were described differently, leading to a lack of consensus ad idem between the parties.
The Court held that the trial court erred in dismissing the petition without examining the bailiff’s report, delivery warrant, and panchanama recorded at the time of delivery. These documents would aid the court in determining the exact property from which the petitioner was dispossessed. The Court emphasized that the trial court should have ordered restitution of the property actually delivered to the respondent pursuant to the ex parte decree.
The Verdict
The Court allowed the Civil Revision Petition, setting aside the order dated 23.11.2024 passed in I.A. No. 476 of 2022. The matter was remanded back to the trial court for fresh orders, with directions to:
- Examine the bailiff’s report, delivery warrant, and panchanama recorded on 03.02.2021.
- Permit the parties to lead evidence if necessary.
- Restore the petitioner to possession of the property from which he was dispossessed on 03.02.2021 pursuant to the ex parte decree.
There was no order as to costs, and pending miscellaneous petitions were closed.
What This Means For Similar Cases
Restitution Under Section 144 CPC Is Mandatory
- The judgment reaffirms that Section 144 CPC mandates restitution when possession is taken pursuant to an ex parte decree later set aside, regardless of disputes regarding property identity.
- Practitioners should argue that restitution is a consequential relief to restore parties to their original position, and courts must examine execution records to determine the exact property involved.
Trial Courts Must Examine Execution Records
- Trial courts must meticulously examine the bailiff’s report, delivery warrant, and panchanama to determine the property from which possession was taken.
- Failure to do so may result in orders being set aside on revision, as seen in this case.
Disputes Over Property Identity Do Not Bar Restitution
- Even if there is a dispute regarding the identity of the property, restitution cannot be denied outright. The trial court must resolve the dispute by examining execution records and permitting evidence if necessary.
- Practitioners should ensure that execution records are thoroughly scrutinized to establish the exact property involved in restitution proceedings.
