BINAYAK SWAIN versus RAMESH CHANDRA PANIGRAHI AND ANOTHER

Citation: [1966] 3 S.C.R. 24 · Decided: 10-12-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Case Partly allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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BINAYAK SWAIN 
v. 
RAMESH CHANDRA-PANIGRAill AND ANOTHER 
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December 10, 1965 
A 
[P. B. GA.JENDRAGADKAR, C.J., K. N. WANCHOO, v. RAMASWAMI 
B 
AND P. SA.TYANARAYANA RA.JU, JJ.] 
Code of Civil Procedure.- S. 144--Property of defendant sold in exe· 
cution of decree-Subsequently decree set aside and cas.e -remand~ 
Application for restitution by defendant-Fresh decree passed against de· 
- fendant-Application for restitution whether to be allowed. 
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A money-<mit against the appellant was dismissed by the trial court 
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but the fin;t appellate court passed an ex-parte decree against him. .The 
appellant's property was sold in execution and purchased by the decree· 
bolder. 
The appellant went to the High Court which set aside_ the ex-
parte decree and remanded the suit. The appellant then filed an appli· -
cation for restitution under s. 144 of the Code of Civil 
Procedure. 
It was stayed pending proceedings in the main suit. The suit was finally 
decided against the applicant, by the High Court.-
Thereafter the trial 
court allowed 
the appellant's 
application 
for _restitution. After inter· 
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mediate proceedings the High Court decided in Letters Patent Appeal 
that the appellant was not entitled to restitution. He appealed to this 
Court by special leave. 
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HELD : The application for restitution was filed by the appellan 
before the passing of a fresh decree by the High Court in second appeal. 
At the time of the application therefore the appellant was entitled to 
restitution because on that. date the decree in execution of which the pro-
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perties were sold bad been set aside. The _ appellant was 
therefore 
_ entitled. to restitution notwithstanding anything which happened suboe-
quently. [27 CE] 
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The principle of the doctrine of restitution is that on the reversal 
of a decree the law imposes an obligation on the party to the suit who 
received the benefit of the erroneous decree to make restitution to the 
other party for what be b.s lost. 
The Court in. making restitution 
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Is bowocl to restore the parties so far as they can be restored to the same 
position they were in at the time when the Court by its erroneous action 
had displaced them from. [27 E-F] 
· 
Zainal-Abdin Khan v. Muhammad Asghar All Khan, I.L.R. 10 .All 
166, relied on. 
Set Umedmal & Anr. v. Srinath Ray & Anr. I.L.R. 27 Cal. 810, Raghw 
Nandan Singh v. Jagdish Singh, 14 C.W.N. 182, Abdul Rahaman v. Sar•f•t 
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Ali . . 20 C.W.N. 667 and Shivbai Kom Babya Swami v. Yesoo, I.LR. -43 
Bom. . 235, _referred to. 
Lal Bhagwant Singh v. Rru Sahib La/4 Sri Kishen Das, [1953] S.C.Jt.. 
559, distingnished. 
CivIL APPELLATE JURISDICTION : Civil Appeal No. 804 of 
1963. 
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Appeal by special leave from the judgment and decree, dated 
January 3, 1961 of the Orissa High Court in Appeal under Orissa 
High Court Order No. 3 of 1959. 
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BINAYAK v. RAMESH (Ramaswami, J.) 
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A 
K. R. Chaudhuri, for the appellant. 
C. B. Agganva/a, B. Parthasarathy, J. B. Dadachanji, 0. C. 
Mathur, and Ravinder Narain, for respondent No. 1. 
The Judgment of the Court was delivered by 
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Ramaswami, J. This appeal is brought by special leave 
on behalf of the judgment-debtor against the judgment of the Orissa 
High Court, dated January 3, 1961 in Letters Patent Appeal No. 3 
of 1959. 
The deceased plaintiff filed Original Suit No. 500 of 1941 
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against the appellant-defendant in the Court of the Additional 
Munsif, Aska claiming Rs. 970 on the basis of a promissory note. 
The suit was dismissed on August 17, 1942. The plaintiff pre-
ferred an appeal No. 178 of 1942 before the District Judge who 
allowed the appeal and set aside the decree of the Munsif and 
decreed the suit ex parte on March 9, 1943. Against this decree 
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of the appellate Court, the appellant filed Second Appeal No. 100 
of 1943 in the Orissa High Court which set aside the decree of the 
District Judge on November 11, 1946 and remanded the suit to 
the lower appellate court for disposal. The lower appellate court 
in its turn remanded the suit to the trial court by its judgment, 
dated April 11, 1947. In the meantime the original plaintiff died 
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and the present respondents were brought on record as his legal 
representatives. The suit was again dismissed by the trial court 
on November 29, 1947 but on appeal the Additional Subordinate 
Judge set aside the judgment and decree of the Munsif on 
Noveml!>e

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