Section 144 of the Civil Procedure Code,1908 deals with the provision of restitution. Section 144 of the civil procedure code does not confer any new substantive right. It merely regulates the power of the Court in that behalf.
Meaning and definition of restitution –
The expression “restitution” has not been defined in the code of civil Procedure anywhere. It is the restoration of something lost or stolen to its proper owner.
According to Webster Dictionary Meaning of Restitution, It is an act of restoring or a condition of being restored such as –
a) a restoration of something to its rightful owner.
b) a making good of or giving an equivalent for some injury.
Provision of restitution (Section 144) –
According to Section 144 (1) where and in so far as a decree or an order is varied or reversed in any appeal revision or other proceedings 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 well 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 orders, 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.
For the purposes of sub-section…
(1) the expression “Court which passed the decree or order” shall be deemed to include —
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;
(c) 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.
(2) 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).
Object of restitution –
The main object of the provision of restitution – Restitution avoids multiplicity of the cases and prevents endless litigation.
The doctrine of restitution is based upon the well-known maximum “Actus curiae neminem gravabit”. i.e. The act of court shall have no one. According to Lord Cairns, “One of the first and highest duties of all courts is to take care that the act of the court does no injury to the Suitors” The law also imposes an obligation on the party who received the benefit of an erroneous Judgement to make restitution to the other party for what he has lost; it is the duty of the court to enforce this obligation.
Conditions of restitution
For the order of restitution under Section 144 of the civil procedure code following conditions are to be satisfied
(i) the restitution sought must be in respect of the decree or order which had been reserved or varied;
(ii) the party applying for restitution must be entitled to benefit under the reserving decree of order; and
(iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order.
In simple words, there must be an erroneous of judgment, the benefit of that erroneous of judgment has been received by one party. And the erroneous judgment has been razor set aside or modified.
If all above conditions are satisfied then Court must grant restitution. It is not discretionary but obligatory.