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.
In Ganesh Pershad vs. Adi Hindu Social Service League, the High Court of A.P. declared that the following conditions must be satisfied namely:
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ADVERTISEMENTS:
1. The restitution sought must be in respect of the decree or order which had been reversed or varied;
2. The party applying for restitution must be entitled to benefit under the reversing decree or order; and
3. The relief claimed must be properly consequential on the reversal or variation of the decree or order.
In Banchhanidhi vs. Bhanu Sahoni Orissa High Court held that the Court before ordering restitution shall ensure that the following conditions are fulfilled namely:
ADVERTISEMENTS:
(i) There must be an erroneous judgement;
(ii) The benefit of that erroneous judgement has been received by one party; and
(iii) The erroneous judgement has been reversed.
The relief of restitution is not discretionary but obligatory on the part of the Court.
Example:
ADVERTISEMENTS:
1. Obtains a decree against B for possession of immovable property and in execution of the decree obtains possession thereof. The decree is subsequently reversed in appeal.
B is entitled under this section to restitution of the property, even though there is no direction for restitution in the decree of the appellate Court.
2. A obtains a decree against B for Rs. 5,000/- and recovers the amount in execution. The decree is subsequently reversed in appeal. B is entitled under
this section to a refund of the amount together with interest upto the date of repayment, though the appellate decree may be silent as to interest.
Persons entitled to seek relief of restitution are:
(i) He must be a party to the decree or order varied or reversed,
(ii) 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 restitution can be ordered :-Restitution can be ordered under this section not only against the party to the litigation, but also against his legal representatives e.g., transferee “Pendente Lite” attaching decree-holder etc.
In State Bank of Saurashtra vs. Chitranjan Raja, Supreme Court held that restitution cannot be claimed against a surety.
Bar of Suit where there is a provision for restitution:
Section 144(2) provides 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).
The Privy Council relying upon Sec. 144(2) held in Rohani vs. Hari Prasad, that the question of separate suit is barred where Sec. 144(2) comes into play.
Limitation:
The period of limitation for remedy of restitution is 12 years. The limitation starts from the date of appellate decree or order.
Appeal:-the determination of a question under Sec. 144 has been declared to be a “decree” and is, appealable.
