ORDER
ABDUS SATTAR ASGHAR, J.--- This Civil Revision under section 115 of Civil Procedure Code, 1908 is directed against the order dated 26-1-2013 passed by learned Civil Judge Lahore on an application under section 144 of Civil Procedure Code, 1908 lodged by Kaukab Waseem respondent.
2.It is argued by learned counsel for the petitioner that the impugned order is against law and facts, without jurisdiction, untenable and liable to set aside.
3.Arguments heard. Record perused.
4.Allegedly petitioner being owner in possession of a house measuring 5 Marlas bearing No.52-E, Block-J-III Jauhar Town, Lahore, entered into an agreement to sell the said house in favour of respondent foraconsiderationofRs.45,50,000/-videagreementtoselldated 23-9-2011 and the target date for completionofthesalewasfixedas2-12-2011. It is further alleged by the petitioner that later on respondent fraudulently replaced first page of the agreement to sell dated 23-9-2011 with the connivance of the stamp-vendor to show bogus and fictitious payments of some amounts through cheques and also illegally and forcibly trespassed into the disputed house and later on filed a suit for permanent injunction and obtained stay order from the Civil Court and that petitioner on having knowledge of the fraud also filed a suit for cancellation of the agreement to sell dated 23-9-2011. Respondent was proceeded ex parte in the said suit which was later on decreed ex parte in favour of the petitioner against the respondent vide judgment and decree dated 18-10-2012 passed by learned Civil Judge Lahore. Being aggrieved respondent lodged Regular First Appeal No.893 of 2012 before this Court against the ex parte judgment and decree dated 18-10-2012. During the pendency of the appeal petitioner lodged an application before the learned executing court seeking execution of the ex parte judgment and decree dated 18-10-2012. The learned executing court issued warrant of possession of the disputed house in favour of the decree-holder vide order dated 22-10-2012 which was executed through Bailiff and the possession was handed over to the petitioner/decree-holder as revealed through orders dated 24-10-2012 and 2-11-2012 passed by learned Executing Court. Respondent being aggrieved of the said orders preferred Execution First Appeal No.938 of 2012 before this Court. The same was dismissed vide order dated 22-11-2012 on the ground that respondent has already availed the remedy of appeal against the ex parte decree pending before this Court and that E.F.A. was filed directly without obtaining the remedy of objection petition before the executing court and respondent accordingly was advised by this Court to file objection petition before the learned executing court. In due course R.F.A. No.893 of 2012 lodged by the respondent was allowed by a Division Bench of this Court vide judgment dated 6-12-2012 and ex parte judgment and decree dated 18-10-2012 was set aside in the following manner:---
"The nutshell of the above discussion is that the impugned judgment was passed when a restraint order issued by the appellate forum was in field, therefore, the impugned judgment is in contravention of the restraint order issued by the learned Additional District Judge and suffers from legal infirmity. If such course is allowed to hold the field, it would amount to perpetuate injustice, hence not sustainable in the eye of law. For this reason, we have no option except to set aside the judgment and decree passed by the learned trial Court as well as the order dated 15-10-2012 and 30-7-2012. Resultantly, this appeal is allowed and the judgment and decrees/orders mentioned above are hereby set aside with the result that the suit of the respondent shall be deemed to be pending with the learned trial Court which shall proceed with the case after providing the opportunity to the appellant for filing her written statement. It is also ordered that the suit of the appellant for performance (if pending with any Civil Judge) shall also be consolidated with this suit and after framing the consolidated issues, the opportunity to lead evidence shall be provided to the parties in accordance with law."
5.Consequently respondent lodged an application under section 144 read with section 151 of Civil Procedure Code, 1908 for restitution/ restoration of possession of the disputed property delivered to the decree-holder in lieu of ex parte judgment and decree dated 18-10-2012, later on set aside by a Division Bench of this Court. After providing an opportunity of hearing to the parties the learned trial Court through the impugnedorderhasdirectedtherestorationofpossessionof groundfloorofthedisputedhousetotherespondent.Hencethis Civil Revision.
6.At this stage it may be expedient to re-produce the provision of section 144 of Civil Procedure Code, 1908:---
"144. Application for restitution.--- (1) Where and insofar as a decree is varied or reversed the Court of first instance, 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 such part thereof as has been varied or reversed; 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 or reversal.
(2)No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1)."
7.In this case admittedly possession of the disputed house was handed over to the petitioner in execution of the ex parte judgment and decree dated 18-10-2012 which later on was set aside by a Division Bench of this Court vide judgment dated 6-12-2012 passed in R.F.A. No.893 of 2012.
8.It is settled principle of law that an act of a court, should not injure the rights of any party. Provision of section 144 of Civil Procedure Code, 1908 is also based on the same principle. Since the respondent, had lost the possession of the disputed house in execution of the ex parte decree which has been later on set aside by a Division Bench of this Court therefore respondent is entitled to the restoration of possession in accordance with law to meet the ends of justice and to restore the parties to the same position they were in prior to the decree that has been reversed. There is no cavil to the proposition that any benefit received by a decree-holder under a decree which has been reversed is refundable to the party entitled to such benefit by restoration. Needlesstosaythattheprinciplelaiddownintheprovisionof section 144 of Civil Procedure Code, 1908 is applicable irrespective of the fact that restoration has or has not been directed in the appellate decree. Restoration therefore is a consequential relief on account of reversal of the decree for the safe administration of justice. The impugned order passed by the learned trial court dated 26-1-2013 does not suffer from any jurisdictional error, factual or legal infirmity and does not call for any interference by this Court in exercise of its revisional jurisdiction.
9.For the above reasons this Civil Revision is dismissed.
KMZ/M-22/LRevision dismissed.
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