This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article talks about Section 144 and Section 11 of the Civil Procedure Code, 1908 which talks about Restitution and Res Judicata. 

Introduction

The expression ‘Restitution’ is not defined under the Civil Procedure Code. Restitution in relation to Civil procedure code means giving back or restoring to the person who is entitled to the benefit from the other party who has wrongly received such benefit under an erroneous decree or order of the court. Res judicata is a Latin term that denotes ‘matter already adjudged by the court cannot be raised again’. These doctrines are not new concepts and are only given statutory recognition under Section 144 and Section 11 of CPC. When a party has filed an application for restitution and it has been dismissed by the Court, res judicata becomes applicable.

Meaning

Restitution in the literal term means to put back or restore anything which has been taken from another in an unfair manner. In other words, the return or restoration of something which has been lost or stolen to the rightful owner of that thing. The Merriam Webster dictionary defines restitution as a legal action serving to cause restoration of a previous state.

Doctrine of restitution

The doctrine of restitution implies to brings the aggrieved party to the original position where the benefit of the erroneous judgment of the court is received by the other party who was not entitled to such benefit.  Restitution is not a new concept and Section 144 merely gives statutory recognition to this principle. Section 144 of CPC deals with the application for restitution. 

Section 144 states that: 

1. When a decree or order of the Court has been: 

• varied/reversed in any appeal, revision or other proceedings;
• is set aside/ modified in any suit instituted for that purpose.

The Court that passed the decree/order will grant restitution on receiving an application of the party entitled to the benefit

The court in the case of Mahjibhai Mohanbhai Barot vs Patel Manibhai Gokalbhai held that an application for restitution is an application for execution of a decree.

The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das held that the party who received the benefit of the erroneous judgment is by law under an obligation to make restitution to the other party for his loss.   

The same view was reiterated by the court in the case of Binayak Swain vs Ramesh Chandra Panigrahi, the doctrine of restitution means that, on reversal of a decree or order, an obligation is imposed by law on the party who has received the benefit of the erroneous decree to make restitution to the other party for his loss. This obligation automatically arises when the decree or order is reversed or modified by the Court. It necessarily carries with it the right of restitution for all the things that have been done under the erroneous decree. The Court while making restitution is under a duty to restore the parties, as far as possible, at the time when the erroneous action of the Court displaced them.

The Apex Court in the case of Union Carbide Corporation v. Union of India held that restitution is a principle of equity and is subject to the Court’s discretion. Section 144 of CPC doesn’t grant any new substantive right to the party not already obtaining under the general law. The Court is obliged to ensure that no one goes back with a feeling that he was impaired by an act which he did on the faith of the Court’s order.

Actus curiae neminem gravabit

The Latin maxim actus curiae neminem gravabit means the act of court should not affect anyone and is founded upon the principle of equity. The Court is obliged to ensure that no one is endured by its order and it should not pass any order to the prejudice of any person. The apex court reiterated the maxim of actus curiae neminem gravabit in the case of Odisha Forest Development Corporation v. M/s Anupam Traders.    

Conditions

In applying for restitution, the following conditions must be fulfilled:

• The decree/order must have been varied or reversed in any appeal, revision or is set aside or modified.
• The party in respect of the reversed or modified decree/order must be entitled to benefit by way of restitution or otherwise.
• The relief claimed by the party must be properly consequential of the variation, reversal, setting aside or modification of the decree/order.

The Orissa High Court in Banchhanidhi Das vs Bhanu Sahuani laid down certain principles to be followed for the application of restitution:

• There should be an erroneous judgment passed by the court.
• The party to the record must have received the benefit of the erroneous judgment.
• The party applying for restitution must show that as a consequence of the erroneous judgment or decree, a party received the benefit.

• The erroneous judgment or decree must have been reversed in appeal.

Who may apply?

A person may apply for restitution who: 

• Was a party to the order or decree being varied, reversed, set aside, or modified.
• Is entitled to any benefit by way of restitution or otherwise in respect of the order or decree being varied, reversed, set aside, or modified.    

Against whom restitution may be granted?

The court may grant restitution against the party who has wrongly received the benefit under the erroneous decree or order of the court. The party receiving the benefit is under an obligation to make restitution to the party for what he has lost. 

Who may grant restitution?

The court which has passed the original decree or order may grant restitution on an application being made to it by the party who is entitled to benefit from such reversed or varied decree or order. 

What remedies court can grant?

The court under Section 144 can make any orders as a consequence of a decree or order being varied, reversed, modified, set aside for the refund of costs and for payment of interest, damages, compensation, and mesne profit.

Nature of proceeding

The nature of proceeding under Section 144 is execution proceedings. The process to get an order or decree into effect is called as execution proceedings.

Extent of restitution

Section 144 is not exhaustive but inclusive. Even if a matter does not fall within the scope of Section 144, the court has the power to grant restitution on its discretion.   

Inherent power to grant restitution

Under Section 151, a court has an inherent power to make such order as may be necessary for meeting the ends of justice or to prevent the abuse of the process of Court other than the power to grant restitution under Section 144. The power of the court to grant restitution is not confined only to the Section 144, the court has an inherent power to grant the remedy of restitution where Section 144 does not apply. There are different circumstances in which the court can order to restore the status quo ante (previously existing state of affairs) meet the ends of justice.

It was held in K.N. Krishnappa vs T.R. Gopalkrishna Setty that under Section 151 C.P.C, the inherent powers of the Court can be invoked for restoring the parties to the position in which they were, prior to the execution.

Bar of Suit

Section 144(2) bars a separate suit instituted for obtaining any remedy if restitution or other relief could be obtained by making an application under Section 144(1).

Res judicata

The principle of Res Judicata finds its root to the expression “Res Judicata Pro Veritate Accipitur” which means a thing adjudged is received as truth. Res Judicata means when a competent court has already adjudged a matter, that matter cannot be raised again or re-opened by the same parties on the same cause of action. The main purpose of res judicata is to bring finality to a judgment in the original or appellate stage. It is based upon the principle of public policy that there should be a limit to litigation and that no man should be vexed twice for the same cause.

Essential elements of Res Judicata:

• Parties to the former suit shall be parties to the subsequent suit.
• The court adjudicating the matter must have jurisdiction over the subject matter of the dispute.
• The judgment or order shall be final. 
• The judgment or order must have been on merits.

Under Section 11 of CPC, the principle of Res Judicata has been given statutory recognition. It provides that once a matter has been heard and finally decided by a court competent to hear and decide such matter then the parties cannot reopen the same matter in a subsequent suit. However, in case the matter in the previous and subsequent suit does not relate to the same parties or the same matter the provisions of this section will not be applicable.

Essentials of Section 11 of CPC 

No court shall try any suit or issue in which:

• The matter directly and substantially in issue in a former suit is directly and substantially the same matter in a subsequent suit;
• Litigation in the subsequent suit between the same parties in the former suit;
• Litigation in the subsequent suit must be for the same title in the former suit.
• The court should be competent to try such subsequent suit or the suit in which the issue has been subsequently raised;
• The court in which subsequent suit is initiated is one which has heard and finally decided the matter directly and substantially in issue in the former suit.   

Explanation I provides that “former suit” means a suit that has been decided prior to the suit in question.

Explanation II provides that the competence of a court has to be determined irrespective of any of the provisions with respect to the right of appeal from the decision of that court.

Explanation III says that the matter referred to in the former suit under Section 11 should be alleged by one party and denied or admitted by the other either expressly or impliedly.  

Explanation IV talks about constructive res judicata which is a subset of res judicata. Constructive res judicata means any claim which should or ought to have been raised in a previous proceeding (already decided) cannot be raised in a subsequent proceeding. Explanation IV provides that any matter which might and ought to have been made a ground of defense or attack shall be deemed to have been a matter directly and substantially in issue in such a suit.

Explanation V provides that for the purpose of Section 11, any relief claimed in the plaint which has not been expressly granted by the decree will be deemed to have been refused.   

Explanation VI refers to a case where persons litigating in a bonafide manner, claims a private right or public right, in common for himself and others, every person interested in such right shall be deemed to be claimed under the person litigating.     

Explanation VII: This explanation was added by Act 104 of 1976. It provides that Section 11 will now apply to execution proceedings.  

Explanation VIII provides that where a competent court of limited jurisdiction has heard and finally decided an issue, it shall operate as res judicata in a subsequent suit, even though the court of limited jurisdiction was not competent to try the subsequent suit or an issue subsequently raised.

Court of limited jurisdiction: It was held in Puthen Veettil Devoki vs Puthen Veettil Kunhi, a court of limited jurisdiction means any courts other than the ordinary Civil Court. Courts of limited jurisdiction would include Insolvency Courts, Land Acquisition Court, Revenue Courts, etc. They try specific matters and are therefore said to be Courts of limited jurisdiction. The decisions of these courts operate as a res judicata in the subsequent suits on the general principles of res judicata and not because of S.11. 

Bar of suit

Res judicata serves as an estoppel upon a previously decided judgment. Under Section 11, the trial of any issue or suit is barred which has been already heard and decided in the former suit.   

Appeal 

Res judicata does not prevent the process of appeals as they are part of the same lawsuit and are not a new suit. In Bhanu Kumar Jain v. Archana Kumar, the Supreme Court observed that it is a well-settled law that the principle of res judicata applies in different stages of the same proceedings.

Effect of the order being implemented

In Bai Chanchal v. Bai Suraj, the court held that If the suit which has been instituted is one in which the matter directly or substantially in issue in a former suit between the same parties, etc, then according to section 11, the court shall not try any such suit. Once the order has been made in a suit it will be considered as res judicata.

Conclusion

The principles of Restitution and Res Judicata ensures that the resources of the court are not unnecessarily wasted and that litigation is not dragged for a long time. If a similar issue or matter is re-opened over and over, there will be no end to litigation. It also puts an obligation upon the court to ensure that no litigant has suffered any loss by its act or omission

References

• The Code of Civil Procedure, 1908.
• https://indiankanoon.org.

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