Restitution means restoring a thing to its proper owner
- The doctrine of restitution essentially provides that on reversal of a decree an obligation is cast upon the party who has received an unjust benefit under such erroneous decree to make restitution to the party who has lost the same.
- The obligation starts immediately when the decree in question gets reversed and the party who suffered a loss must be put in the same position as he was in before the decree was passed.
- S.144 deals with restitution and provides that apart from passing such order for restitution, the court may also pass an order for damages, mesne profits, compensation, etc.
- S.144 however doesn’t confer any substantive rights on the parties and merely regulates the power of the court.
- This section is however not exhaustive as the power of the court to grant restitution is inherent and the same can be exercised whenever justice so demands.
- This doctrine is based on the maxim actus curiae neminem grabavit which means that the act of the court must not hurt anyone.
- The doctrine of restitution is hence founded on equitable principles.
- The expression “act of the court” as used in this section applies to act of every court from the lowest to the highest court which entertains the suit. (check section)
- This provision ought to be construed liberally as it is merely a rule of procedure which has been enacted to provide for speedy trial.
- Before this doctrine can operate the following conditions must necessarily be satisfied-
(a) The restitution must be with respect to a decree or order which has been reversed.
(b) The party applying for restitution must be entitled to some benefit under such decree or order.
(c) The relief claimed must be properly consequential on the reversal or variation of the decree or order.
- If these conditions are satisfied, the court must necessarily grant restitution and the same is not discretionary.
- The person applying for restitution must be a party to the order or decree reversed or varied. However, the term party here includes all such persons who are beneficiaries under the final judgment.
- Such persons must have become entitled to some benefit by way of restitution after such reversal.
- Restitution can be granted not only against the party but also his representatives but not against a surety.
- Restitution is to be granted by the court which passed such order or decree, which includes the court of first instance (where the decree has been reversed/varied by the appellate court or has been set aside) or where the court of first instance has ceased to exist or ceased to have jurisdiction, such court in which if the suit would have been instituted for the first time, such court would have had the jurisdiction to try the suit.
- If the application for restitution has been decided on merits, it shall operate as res judicata.
- The period of limitation for the same is 12 years starting from the date of the appellate decree or order as per Art 136 of the Limitation Act.
- The determination of a question as to restitution under S.144 has been declared as being a decree under S.2(2) and is thus subject to appeal.
- S. 144(2) further provides that no separate suit shall be instituted for the purpose of obtaining restitution where the same could have been instituted under this section.
Important question- When will filing a fresh suit by the plaintiff not be allowed?
(a) Rule 21 of order XVI deals with the consequences for not answering interrogatories or for not complying with an order relating to discovery or production of documents. In such cases, if the plaintiff is in default, his suit shall be dismissed for want of prosecution and he shall not be allowed to file a fresh suit.
(b) Where plaintiff doesn’t appear and suit dismissed under Order IX rule 8.
Submitted By –
(Editor @ Legal Bites)