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inherent power and restitution

Supreme Court of India

Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal on 16 November, 1961

The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders(as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, an departure therefrom is not permissible. As observed in L. R. 62 I. A. 80 (Maqbul Ahmed v. Onkar Pratab) "It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act." Inherent jurisdiction of the court to make order ex debito justitiae is undoubtedly affirmed by s. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals Expressly with a particular matter, the provision should normally be regarded as exhaustive.The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in s. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary or different from the procedure expressly provided in the Code."



Supreme Court of India

M/S. Ram Chand And Sons Sugar Mills ... vs Kanhaya Lal Bhargava & Ors on 10 March, 1966


in Arjun Singh v. Mohindra Kumar consi- dered the scope of s. 151 of the Code. One of the questions raised was whether an order made by a court under a situation to which O. IX, r. 7, of the Code did not apply, could be treated as one made under s. 151 of the Code. Rajagopala Ayyangar, J., made the following observations:


"It is common ground that the inherent power of the Court cannot override the express provisions of the law. in other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be expressed but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates."

Having regard to the said decisions, the scope of the inherent power of a court under s. 151 of the Code may be defined thus: The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of s.151 of the Code, they' do not control the undoubted power of the court conferred under s. 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.


Supreme Court of India

Shipping Corporation Of India Ltd vs Machado Brothers & Ors on 25 March, 2004

"The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercise if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court."


From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. In the instant case, the appellant contends that during the pendency of the first suit, certain subsequent events have taken place which has made the first suit infructuous and in law the said suit cannot be kept pending and continued solely for the purpose of continuing an interim order made in the said suit. While examining this question we will have to consider whether the court can take cognizance of a subsequent event to decide whether the pending suit should be disposed of or kept alive. If so, can a defendant make an application under Section 151 CPC for dismissing the pending suit on the ground the said suit has lost its cause of action. This Court in the case of Pasupuleti Venkateswarlu vs. The Motor & General Traders (1975 1 SCC 770 at para 4) has held thus:


"We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-`-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equality justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice  subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad.


We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."


In the very same case, this Court quoted with approval a judgment of the Supreme Court of United States in Patterson vs. State of Alabama, (294 US 600) wherein it was laid down thus : "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such deposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered."


Almost similar is the view taken by this Court in the case of J.M.Biswas vs. N.K.Bhattacharjee & Ors. (2002 (4) SCC 68) wherein this Court held :


"The dispute raised in the case has lost its relevance due to passage of time and subsequent events which have taken place during the pendency of the litigation. In the circumstances, continuing this litigation will be like flogging a dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interests of the Union."


Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 of CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.

Having thus understood the law, we will now consider whether the courts were justified in rejecting the application filed by the appellant herein for dismissing the suit on the ground that the same had become infructuous. In this process, we have already noticed that there seems to be no dispute that the original termination notice based on which first suit O.S.No.4212/95 was filed, has since ceased to exist because of the subsequent termination notice issued on 23.8.2001, validity of which has already been challenged by the respondent in the third suit. While dismissing the application I.A.No.20651/2001 the courts below proceeded not on the basis that the original notice of termination has not become infructuous, but on the basis that the said application lacks in bona fide and if the said application is allowed the interlocutory injunction hitherto enjoyed by the plaintiff will get vacated and consequently the plaintiff will be prejudiced. The question for our consideration now is whether such ground can be considered as valid and legal. While so considering the said question one basic principle that should be borne in mind is that interlocutory orders are made in aid of final orders and not vice versa. No interlocutory order will survive after the original proceeding comes to an end. This is a well established principle in law as could be seen from the judgment of this Court in Kavita Trehan (Mrs.) & Anr. vs. Balsara Hygiene Products Ltd. (1994 5 SCC 380) wherein it is held :


"Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible."


Therefore, in our opinion, the courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse.


The next ground given by the courts below that the dismissal of the suit would prejudice the respondent, again on the ground of interlocutory order getting dissolved, cannot also be sustained. If the suit in fact has become infructuous consequences of dismissal of such suit cannot cause any prejudice to the plaintiff. As a matter of fact, the consequence should be to the contrary, that is, such continuance of infructuous suit would cause prejudice to the defendant.


We have already noticed that the courts below have also held that the application of the appellant lacks in bona fide. We fail to understand how this is so. If a party has a legal right to ask for dismissal of an infructuous suit, and pursuant to the said right it makes an application for dismissal of said suit, the same cannot be termed as an act in malice.


For the reasons stated above, we are of the opinion that continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires such suit should be disposed of as having become infructuous. The application under Section 151 of CPC in this regard is maintainable.




Supreme Court of India

Ramji Gupta & Anr vs Gopi Krishan Agrawal (D) & Ors on 11 April, 2013


4. In Smt. Santosh Chopra v. Teja Singh & Anr., AIR 1977 Del 110, the Delhi High Court dealt with the issue with respect to whether a non-party/stranger has any locus standi to move an application under Order IX Rule 13 CPC, to get an ex-parte decree set aside, he would be adversely affected by such decree. In the said case, the Rent Controller had held, that it would be patently unjust to bar any remedy for such a landlord, since the applicant was the assignee of the rights of the previous landlord, therefore, he could apply for setting aside of the decree as such. The Delhi High Court came to the conclusion that the statutory provisions of Order IX Rule 13 CPC itself, refer to the defendant in an action, who alone can move an application under Order IX Rule 13 CPC. Therefore, a person who is not a party, despite the fact that he might be interested in the suit, is not entitled to move an application under the rule. In fact he had no locus standi to have the order set aside. Such an order could not be passed even under Section 151 CPC. In view thereof, the order passed by the Rent Controller was reversed.


5. In Smt. Suraj Kumari v. District Judge, Mirzapur & Ors., AIR 1991 All 75, the Allahabad High Court dealt with a similar issue, and rejected the contention that at the instance of a stranger, a decree could be reopened in an application under Order IX Rule 13 read with Section 151 CPC, even if such decree is based on a compromise, or has been obtained by practising fraud upon the court, to the prejudice of the said stranger.


6. However, in Dulhim Suga Kuer & Anr. v. Deorani Kuer & Ors., AIR 1952 Pat 72, the Patna High Court dealt with the provisions of Section 146 CPC, which contemplate a change of title after the decree has been awarded and held that, the true test is whether the transferee is affected by the order or decree in question. Where, the transfer is subsequent to the ex parte decree, the transferee would certainly be interested in setting aside the ex parte decree.


7. In Surajdeo v. Board of Revenue U.P. Allahabad & Ors., AIR 1982 All 23, the Allahabad High Court dealt with an issue where an application was filed by a non-party, under Order IX Rule 13 CPC to set aside the ex parte decree. The Court held:


“the petitioner was vitally interested in the decree passed in favour of the contesting opposite parties which he wants to be vacated. If the decrees in favour of the contesting opposite parties remain intact, the petitioner’s right of irrigating his fields from the disputed land shall be vitally affected. In such a circumstance even if the petitioner is assumed to have no locus standi to move the application for setting aside the ex parte decrees in favour of the contesting opposite parties, it cannot be said that the trial court had no jurisdiction to set aside the ex parte decrees which were against the provisions of law and were the result of collusion and fraud practiced by the plaintiff and the defendants in the suits in which decrees recognizing the claim of the contesting opposite parties in the disputed land as Sirdar were passed.” (Emphasis added)

8. Section 151 CPC is not a substantive provision that confers the right to get any relief of any kind. It is a mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. The court can do justice between the parties before it. Similarly, inherent powers cannot be used to re-open settled matters. The inherent powers of the Court must, to that extent, be regarded as abrogated by the Legislature. A provision barring the exercise of inherent power need not be express, it may even be implied. Inherent power cannot be used to restrain the execution of a decree at the instance of one who was not a party to suit. Such power is absolutely essential for securing the ends of justice, and to overcome the failure of justice. The Court under Section 151 CPC may adopt any procedure to do justice, unless the same is expressly prohibited.


The consolidation of suits has not been provided for under any of the provisions of the Code, unless there is a State amendment in this regard. Thus, the same can be done in exercise of the powers under Section 151 CPC, where a common question of fact and law arise therein, and the same must also not be a case of misjoinder of parties. The non-consolidation of two or more suits is likely to lead to a multiplicity of suits being filed, leaving the door open for conflicting decisions on the same issue, which may be common to the two or more suits that are sought to be consolidated. Non- consolidation may, therefore, prejudice a party, or result in the failure of justice. Inherent powers may be exercised ex debito justitiae in those cases, where there is no express provision in CPC. The said powers cannot be exercised in contravention of, or in conflict with, or upon ignoring express and specific provisions of the law. (See: B.V. Patankar & Ors. v. C.G. Sastry, AIR 1961 SC 272; Ram Chandra Singh v. Savitri Devi & Ors., AIR 2004 SC 4096; Jet Plywood Pvt. Ltd. v. Madhukar Nowlakha, AIR 2006 SC 1260; State Bank of India v. Ranjan Chemicals Ltd. & Anr., (2007) 1 SCC 97; State of Haryana & Ors. v. Babu Singh, (2008) 2 SCC 85; Durgesh Sharma v. Jayshree, AIR 2009 SC 285; Nahar Industrial Enterprises Ltd. v. H.S.B.C. etc. etc., (2009) 8 SCC 646; and Rajendra Prasad Gupta v. Prakash Chandra Mishra & Ors., AIR 2011 SC 1137).


9. In exceptional circumstances, the Court may exercise its inherent powers, apart from Order IX CPC to set aside an ex parte decree.


An ex-parte decree passed due to the non appearance of the counsel of a party, owing to the fact that the party was not at fault, can be set aside in an appeal preferred against it. So is the case, where the absence of a defendant is caused on account of a mistake of the Court. An application under Section 151 CPC will be maintainable, in the event that an ex parte order has been obtained by fraud upon the court or by collusion. The provisions of Order IX CPC may not be attracted, and in such a case the Court may either restore the case, or set aside the ex parte order in the exercise of its inherent powers.


There may be an order of dismissal of a suit for default of appearance of the plaintiff, who was in fact dead at the time that the order was passed. Thus, where a Court employs a procedure to do something that it never intended to do, and there is miscarriage of justice, or an abuse of the process of Court, the injustice so done must be remedied, in accordance with the principle of actus curia neminem gravabit - an act of the Court shall prejudice no person.


10. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, this Court examined the issue with respect to whether, the court is competent to grant interim relief under Section 151 CPC, when the same cannot be granted under Order XXXIX Rules 1 & 2 CPC, and held :


“There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order 39 of the Code…… the other view is that a Court can issue an interim injunction under circumstances which are not covered by Order 39 of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction;……We are of opinion that the latter view is correct and that the Court have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, C.P.C., there is no expression in Section 94 which expressly prohibits the issue of temporary injunction in circumstances not covered by Order 39 or by any rule made under the Code. It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ‘ if it is so prescribed’ is only this that when the rule prescribes the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction, but it could do that in the exercise of its inherent jurisdiction. No party has a right to inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise the inherent power.” (Emphasis added)

11. In Indian Bank v. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592, this Court dealt with a similar case and observed, that fraud not only affects the solemnity, regularity and orderliness of the proceedings of the court, but that it also amounts to abuse of the process of court. The Court further held, that “the judiciary in India also possesses inherent powers, specially under Section 151 CPC, to recall its judgment or order if the same has been obtained by fraud upon the court. In the case of fraud upon a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud.”


12. Similarly, in Dadu Dayal Mahasabha v. Sukhdev Arya & Anr., (1990) 1 SCC 189, this Court examined a issue as to whether the trial court has the jurisdiction to cancel an order permitting the withdrawal of the suit under its inherent powers, if it is ultimately satisfied that the suit has been withdrawn by a person who is not entitled to withdraw the same. The court held that “the position is well established that a court has the inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties”. However, the Court pointed out that there is a distinction between cases where fraud has been practised upon the court and where fraud has been practised upon a party, while observing as under:


“If a party makes an application before the court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fraudulent representation made to it that the party had actually consented to it. However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent has been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit”. (Emphasis added)

13. In view of the above, the law on this issue stands crystalised to the effect that the inherent powers enshrined under Section 151 CPC can be exercised only where no remedy has been provided for in any other provision of the CPC. In the event that a party has obtained a decree or order by playing a fraud upon the court, or where an order has been passed by a mistake of the court, the court may be justified in rectifying such mistake, either by recalling the said order, or by passing any other appropriate order. However, inherent powers cannot be used in conflict of any other existing provision, or in case a remedy has been provided for by any other provision of the CPC. Moreoveer, in the event that a fraud has been played upon a party, the same may not be a case where inherent powers can be exercised.



RESTITUTION :

Andhra High Court

Nallapati Panduranga Rao vs Vempati Venkateshwara Rao & ... on 20 November, 2014

Section 144 of CPC lays down that when a decree or order is varied or reversed by appellate/revisional Court, the decreeing Court may order restitution placing the parties in the same position, which they occupied before the decree. There cannot be any doubt that on a true interpretation, Section 144 deals one and only situation where the decree of the original Court is reversed by the appellate/revisional Court. Therefore, in matters of restitution not falling within the scope of Section 144 of CPC, would it be correct to say that the civil Court has no such power of restitution ? There is abundant authority that there can be number of situations where the Court can exercise its inherent power under Section 151 of CPC to prevent miscarriage of justice by reason of its orders. Such power is to be exercised by the civil Court in discharge of its duty, which is explained by the well known maxim actus curiae neminem gravabit. The power is exercised by civil Court to order restitution to ensure that no person - whether such person is party to the suit/application or not; gets undue advantage by its orders, is no party grossly prejudiced by its proceedings/orders.


Therefore, it is well settled that even in a situation where Section 144 of CPC per se is not applicable, still the civil Court has inherent jurisdiction to order restitution to avoid prejudice to a party who suffered by reason of the orders passed by the civil Court, if it is ultimately found that such orders were passed under mistake of fact or such orders are vitiated by fraud and misrepresentation.

It is well settled that restitution can be ordered either under Section 144 of section 151 of the code of the Civil Procedure.

Where the ingredients of Section 144, C.P.C. are satisfied, the court has no discretion to refuse restitution as the provisions of Section 144 are mandatory,. There may be cases where the provisions of S. 144 are not strictly satisfied but at the same time it is just, proper and equitable to order restitution as no party should be allowed to take advantage or benefit of a wrong or illegal order of the court of law. In such cases, the court must step in and exercise its inherent power invested under Section 151 and do real and substantial justice to the parties, the very intendment and purpose of Section 151 being only to meet the ends of justice and to prevent miscarriage of justice. The power vested under Section 151 being discretionary and to be used to do real and substantial justice to the parties, must be exercised fairly, reasonably and objectively but not arbitrarily. Even assuming that the provisions of Section 144, Civil procedure code are not attracted, it admits of no doubt that the court has inherent jurisdiction under 151 to order restitution and payment of reasonable rate of interest on the amount directed to be paid back to the party from whom it was erroneously or illegally collected.


Supreme Court of India

Mrs. Kavita Trehan And Another vs Balsara Hygiene Products Ltd. on 11 July, 1994

The Law of Restitution encompasses all claims founded upon the principle of unjust enrichment. 'Restitutionary claims are to be found in equity as well as at law'. Restitutionary law has many branches. The law of quasi-contract is "that part of restitution which stems from the common Inebriates counts for money had and received and for money paid, and from quantum meruit and quantum vale bat claims." [See 'The Law of Restitution" - Goff & Jones, 4th Edn. Page 3]. Halsburys Law of England, 4th Edn. Page 434 states :


Common Law. Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi contract or restitution.


For historical reasons, quasi contract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two strands are in the process of being woven into a single topic in the law, which may be termed "restitution.


Recently the House of Lords had occasion to examine some of these principles in Woolwich Equitable Building Society v. Inland Revenue Commissioners [1993] A.C. 70.


14. In regard to the law of restoration of loss or damage caused pursuant to judicial orders, the Privy Council in Alexander Rozer Charles Carnie v. The Comptoir D'Escompte De Paris [1869-71] 3 AC 465 at 475 stated :


...one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.


In Jai Berham and Ors. v. Kedar Nath Marwari and Ors. AIR (1922) P.C. 269 at 271, the Judicial Committee referring to the above passage with approval added :


It is the duty of the Court under Section 144 of the Civil Procedure Code to "Place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed.


Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved.


In Binayak Swain v. Ramesh Chandra Panigrahi and Anr. , this Court stated the principal thus :


...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 he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound 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....


15. Section 144 CPC incorporates only a part of the general law of restitution. It is not exhaustive. (See Gangadhar and Ors. v. Raghubar Dayal and Ors. F.B. and State Govt. of Andhra Pradesh v. Manickchand Jeevraj & Co. Bombay .


The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words "Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose,..." The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.

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