Section 144 — Application for restitution
The doctrine of restitution. Where a decree or order is later varied, reversed, set aside or modified, the Court that passed it must — on application — restore the parties to the position they would have occupied but for it (1), with refund of costs and payment of interest, damages, compensation and mesne profits. The Explanation fixes which Court acts; sub-section (2) bars a separate suit for the same relief.
How to read Section 144
The doctrine (1)
When a decree / order is later undone, the party who gained under it must give back — the Court restores the other to the position he would have occupied but for it.
Which Court & what orders
The Court which passed the decree (the Explanation says which that is) acts — and may order refund of costs, interest, damages, compensation, mesne profits.
Apply, don’t sue (2)
Restitution is got by application, not a fresh suit — sub-section (2) bars a separate suit for what (1) can give.
The bare Act
(1) Where and in so far as a decree [or an order]1 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]2 shall, on the application of any party entitled to 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]1 or [such part thereof as has been varied, reversed, set aside or modified]3; 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]4.
For the purposes of sub-section (1), the expression “Court which passed the decree or order” shall be deemed to include—
(2) .
1 “[or an order]” ins. by Act 66 of 1956, s. 13 (w.e.f. 1-1-1957).
2 Subs. by Act 104 of 1976, s. 48, for “varied or reversed, the Court of first instance” (w.e.f. 1-2-1977).
3 Subs. by s. 48, ibid., for “such part thereof as has been varied or reversed”.
4 Subs. by s. 48, ibid., for “consequential on such variation or reversal”.
5 Explanation ins. by s. 48, ibid. (w.e.f. 1-2-1977).
In short: if a decree or order is undone (on appeal / revision, or set aside by a suit), the Court that passed it must, on application, restore the parties to where they would have been — with refund of costs, interest, damages, compensation and mesne profits. A party cannot sue separately for what this application gives.
→ § 144 codifies the doctrine of restitution — “he who gains under a decree later reversed must make restitution”. The 1976 amendment widened it to orders (not just decrees) and to setting aside / modification (not just variation / reversal), and added the Explanation fixing which Court acts. Restitution is consequential and automatic on the reversal, sought by application — never a fresh suit (sub-s. 2).
Key terms decoded
Restoring a party to the position he would have occupied but for a decree that is later undone. The party who benefited under it must give back.
The ways a decree / order is undone — on appeal or revision (varied / reversed), or by a separate suit (set aside / modified). All trigger § 144.
The Court that grants restitution. By the Explanation this includes the Court of first instance (when reversed on appeal), and a successor court if the original has ceased to exist.
Orders flowing from the reversal — refund of costs, and payment of interest, damages, compensation and mesne profits.
The profits a wrongful possessor received (or might reasonably have received) from property — restored on restitution.
Restitution must be sought by application under (1). A fresh suit for the same relief is barred — avoiding multiplicity of proceedings.
The picture — undo the decree, restore the parties
§ 144 turns the reversal of a decree into a clean unwinding: the same Court, on a simple application, places everyone back where they belong — refunding, compensating and accounting for what the wrong decree had shifted — without the cost and delay of a fresh suit.
Part by part — the power, the Court, the bar
Sub-section (1) is the restitution power: the reversal of a decree carries with it a duty to undo what it caused — restoring the loser and accounting for the gains.
Where and in so far as a decree [or an order] is varied or reversed … or is set aside or modified …
Any undoing of the decree / order — on appeal / revision, or by a separate suit — opens the door, to the extent (“in so far as”) it is undone.
…shall, on the application of any party entitled to any benefit by way of restitution or otherwise…
It is granted on application by a party entitled to a benefit — and the Court “shall” cause restitution; it is not discretionary.
…cause such restitution to be made as will … place the parties in the position which they would have occupied but for such decree…
The measure is the “but for” position — where the parties would stand had the wrong decree never been passed (or its undone part).
…the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits…
To complete the unwinding, the Court may order refund of costs and interest, damages, compensation and mesne profits — whatever is properly consequential.
The Explanation (added 1976) settles the recurring question: which Court grants restitution. The answer is normally the Court of first instance — with a sensible fallback if it no longer exists.
where the decree or order has been varied or reversed in exercise of appellate or revision jurisdiction, the Court of first instance…
Even though the appellate / revisional Court reversed it, restitution is done by the Court of first instance — the trial court.
where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order…
When undone by a separate suit, it is again the first-instance Court that passed it which grants restitution.
where the Court of first instance has ceased to exist or … jurisdiction … the Court which … would have jurisdiction to try such suit.
If the original Court is gone, the power passes to the Court that would today try such a suit — so restitution never fails for want of a forum.
Sub-section (2) channels everything into the application: what (1) can give, a fresh suit cannot be brought to obtain — keeping the unwinding within the original proceeding.
No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).
A separate suit is barred for any restitution or relief that the (1) application can give — avoiding multiplicity and keeping the matter with the Court that passed the decree.
How the section fits together
Reversal → restoration by the right Court → by application alone
Connected provisions
Section 144 opens Part XI’s restitution & relief group (§§ 144–147). It is the engine of the doctrine of restitution — undoing the effects of a decree that is later reversed. Its bar on separate suits (sub-s. 2) mirrors the execution-court’s exclusive role under § 47.