Prabhash Wrongly Mentioned Prabhashi Chandra Majumdar and Ors. Vs Vijay Kumar Banthia and Ors.

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2026:CGHC:4859

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 517 of 2014

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1. Prabhash Wrongly Mentioned Prabhashi Chandra Majumdar And Ors. S/o Late Narayandas Majumdar Bramhachari Aged About 67 Years R/o Near Hanuman Mandir, Vakde House, Behind Karamchari Bhawan Gali, Budhapara, Raipur C.G., Chhattisgarh

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2. Ku. Sarla Majumdar D/o Late Narayandas Majumdar R/o Near Hanuman Mandir, Vakde House, Behind Karamchari Bhawan Gali, Budhapara, Raipur C.G., District : Raipur, Chhattisgarh

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3. Ku. Shaymala Majumdar D/o Late Narayandas Majumdar Aged About 59 Years R/o Near Hanuman Mandir, Vakde House, Behind Karamchari Bhawan Gali, Budhapara, Raipur C.G., District : Raipur, Chhattisgarh

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4. Ku. C. Majumdar D/o Late Narayandas Majumdar Bramhachari Aged About 49 Years R/o Near Hanuman Mandir, Vakde House, Behind Karamchari Bhawan Gali, Budhapara, Raipur C.G., District : Raipur, Chhattisgarh

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5. Gopal Chandra Majumdar S/o Late Puran Chand Majumdar Aged About 42 Years R/o Khariyar Road, Distt. Nayapara Odisha,

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6. Sagar Kumar Majumdar S/o Late Puran Chandra Majumdar Aged About 39 Years R/o Khariyar Road, Distt. Nayapara Odisha,

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...Appellant(s)

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versus

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1. Vijay Kumar Banthia S/o Late Panmal Ji Banthia Aged About 54 Years R/o I-1, Anupam Nagar, Police Thana Civil Lines, Distt. Raipur C.G., Chhattisgarh

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2. Vaibhav Banthia S/o Vijay Kumar Banthia Aged About 31 Years R/o I-1, Anupam Nagar, Police Thana Civil Lines, Distt. Raipur C.G., District : Raipur, Chhattisgarh

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3. Nidhi Banthia S/o Vijay Kumar Banthia Aged About 27 Years R/o I-1, Anupam Nagar, Police Thana Civil Lines, Distt. Raipur C.G., District : Raipur, Chhattisgarh

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4. Vikram Banthia S/o Vijay Kumar Banthia Aged About 21 Years R/o I-1, Anupam Nagar, Police Thana Civil Lines, Distt. Raipur C.G., District : Raipur, Chhattisgarh

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... Respondent(s)

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For Appellant(s)	: Mr.	Parag Kotecha, Advocate

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Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board

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29.01.2026

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This second appeal under Section 100 of the Code of Civil Procedure, 1908, has been preferred by the appellants/ defendants–tenants, calling in question the legality and propriety of the judgment and decree dated 04.12.2014 passed by the learned District Judge, Raipur, whereby the appeal preferred by the plaintiffs–owners was allowed and the order dated 10.05.2013 passed by the Fourth Civil Judge, Class-II, Raipur in Execution Case No. 117-A/91 was set aside.

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The facts of the plaint, in nutshell are that the original plaintiff Smt. Veena Banthia was the owner and landlord of the suit accommodation situated at Raipur, having purchased the same from Mohd. Hussain by registered sale deed dated 12.12.1979.

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Defendant Prabhas Majumdar was a tenant in the suit premises on a monthly rent of Rs.60/-. On the ground of bona fide requirement, Civil Suit No. 117-A/91 was instituted seeking eviction of the tenants. The said suit was decreed in favour of the plaintiff-owner by the Trial Court vide judgment and decree dated 07.05.1993. The decree was reversed in Civil Appeal No. 20-A/94 by judgment dated 16.12.1994. Aggrieved thereby, the plaintiffs preferred Second Appeal No. 255/95, which was allowed by this Court on 05.03.2012, restoring the decree of eviction passed by the Trial Court.

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Pursuant thereto, execution proceedings were initiated on 13.04.2012. During execution, the tenants/defendant preferred SLP No. 24354/2012, which came to be dismissed by the Supreme Court by order dated 19.09.2012, granting one year’s time to vacate the premises subject to filing of an undertaking. Admittedly, no such undertaking was filed within the stipulated time, nor was any information furnished to the executing court. Consequently, the executing court issued warrant of possession on 19.10.2012, and possession was lawfully delivered to the plaintiff/decreeholders.

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After completion of execution, the tenants filed an application under Section 144 CPC on 19.11.2012, claiming for the first time that an undertaking had been submitted before the Supreme Court. The decree-holders denied any knowledge of such

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undertaking and contended that the execution proceedings had already attained finality. Nevertheless, the executing court allowed the application and ordered restoration of possession. This order was reversed by the First Appellate Court, giving rise to the present second appeal.

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Heard learned counsel for the appellant and perused the records.

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Learned counsel for the appellants/tenants contended that the undertaking was filed before the Supreme Court within time and, as there was no specific direction to intimate the executing court, the tenants cannot be faulted. It was submitted that the order of restitution was rightly passed to give effect to the Supreme Court’s directions.

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Upon appreciation of oral and documentary evidence and after full consideration, the appellate court recorded finding in favour of the decree-holders observing that the provision of Section 144 CPC will not attract, there being no variation or reversal of a decree which was in favour of the decree holder.

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The core issue in this second appeal revolves around the applicability of Section 144 CPC. For ready reference Section 144 of the CPC is reproduced herein below:-

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144. Application for restitution .-(1) Where and in so

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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 Court which passed the decree or order] shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, 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].

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A plain reading of the provision makes it clear that restitution can be ordered only when a decree or order is varied, reversed, set aside or modified in appeal, revision or other proceedings. The object of the provision is to restore a party to the position which it would have occupied but for an erroneous decree.

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In the present case, the decree of eviction passed by the Trial Court and restored by this Court in Second Appeal No. 255/95 remained intact and unaltered. The Supreme Court dismissed the

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SLP and merely granted conditional time to vacate the premises. Such an order granting time does not amount to variation, modification or reversal of the decree so as to attract Section 144 CPC.

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Even assuming the appellants’ contention regarding filing of undertaking to be correct, it is undisputed that the same was never brought to the notice of the executing court prior to delivery of possession. The execution proceedings were thus completed lawfully. The consequences arising therefrom were clearly attributable to the appellants’ own omission.

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Judicial precedents have consistently held that restitution under Section 144 CPC is permissible only when a party has derived undue advantage under a decree subsequently reversed or modified. The present case is not one of reversal of decree but of alleged non-compliance with a conditional order of the Supreme Court. In such circumstances, the proper remedy, if any, was to approach the Supreme Court itself, which was never done. It is also relevant to note that even the extended period granted by the Supreme Court has long since expired. Therefore, no equitable or legal ground survives for ordering restitution at this stage.

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In these circumstances, the provisions of Section 144, CPC were not attracted there being no variation or reversal of a decree or order as contemplated by Section 144. The remedy of the

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appellant, if any, did not lie in an application for restitution before the executing court under Section 144, CPC.

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It is well settled that ordinarily, a finding of fact recorded by a First Appellate Court is considered final and binding. However, interference in a Second Appeal is permissible where the impugned finding is based on misreading of evidence, ignores material evidence, or is arrived at by applying incorrect legal principles.

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In the considered opinion of this Court, the impugned judgment does not suffer from any legal infirmity. The decree of eviction having remained unchanged, invocation of Section 144 CPC by the executing court was wholly without jurisdiction. The First Appellate Court has rightly set aside the order of restitution.

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Accordingly, the second appeal fails and is hereby dismissed .

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SD/(Bibhu Datta Guru) Judge

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Jyoti

Prabhash Wrongly Mentioned Prabhashi Chandra Majumdar and Ors. v. Vijay Kumar Banthia and Ors.

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Prabhash Wrongly Mentioned Prabhashi Chandra Majumdar and Ors. v. Vijay Kumar Banthia and Ors.

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