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Home Law Notes Civil Procedure Code RESTITUTION - MEANING, CONDITION

RESTITUTION – MEANING, CONDITION

Updated: May 20, 2020

Restitution is an act of restoring a thing to its proper owner, and means restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong. The provisions relating to restitution have been provided in section- 144 of the CPC. Section 144 does not confer any new substantive right. It merely regulates the power of the court in that behalf.

The doctrine of restitution is an equitable principle and is based upon the well – known maxim-“ actus uriae neminem gravabit”, i.e the act of court shall harm no one.

Lord cairns has explained in Alexender Roser v Comptoir D’s Escompte de paris(1871) LR 3 PC

That “ 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 judgment to make restitution to the other party for what he has lost, and it is the duty of the court to enforce this obligation.

MEANING- 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 an unjust benefit of the erroneous decree to make restitution to the other party for what he has lost. The 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 a making the 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.

CONDITION- Before restitution can be ordered under this section, the following three conditions must be satisfied:

a- The restitution sought must be in respect of the decree or order which had been reversed or varied.

b- The party applying for restitution must be entitled to benefit under the reversing decree or order; and

c- The relief claimed must be properly consequential on the reversal or variation of the decree or order.

In other words, (i) there must be an erroneous judgment, (ii)- the benefit of that erroneous judgment has been received by one party; and (iii)- the erroneous judgment has been reversed, set aside or modified.

If these conditions are satisfied, the court must grant restitution. it is not discretionary or obligatory.

WHO MAY APPLY-

a- He must be a party to the decree or order varied or reversed.

The expression’ party’ is not confined to mean only a technical party to the suit or appeal but includes any beneficiary under the final judgment, and

He must have become entitled to any benefit by way of restitution or otherwise under the reversing decree or order.

Thus, a trespasser cannot get restitution.

AGAINST WHOM RESTITUTED CAN BE GRANTED- Restitution can be ordered under this section not only against the party t the litigation, but also against his legal representatives,e.g transferee pendents lite, attaching decree-holder etc, section -144 applies only to the parties of their representatives and does not apply to sureties. hence, restitution cannot be granted against a bona fide auction – purchaser.

WHO MAY GRANT RESTITUTION- An application for restitution lies to the court which has passed the decree or made the order.

LIMITATION AND APPEAL– Section- 144 is an application for the execution of a decree and is governed by article 136 of the LIMITATION ACT, 1963. The period of limitation for such an applicator is twelve years and it will start from the date of the appellate decree or order. The determination of question under sec-144 has been expressly declared to be a decree under sec-2(2) of the code and is, therefore, appealable.

INHERENT POWER TO GRANT RESTITUTION– It merely regulates the power of courts. The doctrine is based on equity and against unjust enrichment. section- 144 is not exhaustive. Hence, there is always an inherent jurisdiction to order restitution.

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