Chhattisgarh HC Refuses To Quash Heirs’ Restitution Case Over Land Possession Delivered Under A Decree Later Set Aside

The petitioner obtained possession of the suit property in execution of an appellate decree dated 24 March 2005, which had reversed the trial court’s dismissal of his suit for declaration of title and permanent injunction.

The defendant, Lakshman Chandrakar, challenged that decree in Miscellaneous Appeal No. 94 of 2006. On 26 March 2014, the High Court allowed the appeal and remitted the matter to the appellate court, directing the parties to appear there. After the petitioner failed to appear, the appellate court dismissed his appeal for want of prosecution on 23 March 2015.

Lakshman Chandrakar had died in 2008, but his death was not brought to the High Court’s attention during the miscellaneous appeal. In 2022, his legal representatives applied for restitution under Section 144 CPC. The petitioner challenged both the 2015 dismissal and the pending restitution proceeding.

Under Order 41 Rule 19 CPC, an appellant whose appeal has been dismissed for default may apply to the appellate court for its readmission by showing sufficient cause for non-appearance. Order 41 Rule 17 CPC permits dismissal when the appellant does not appear at the hearing.

Section 144(1) CPC empowers the court, where a decree or order has been varied or reversed, to restore parties, so far as possible, to the position they would have occupied but for that decree or order; the court of first instance may act as the restitution court under the provision’s Explanation.

The petitioner had not applied to the appellate court under Order 41 Rule 19 CPC to restore the appeal, so the High Court declined to assess the dismissal order’s validity on the asserted grounds concerning notice and non-appearance. The petitioner could pursue restoration before the appellate court by showing sufficient cause.

As to restitution, the decree under which the petitioner obtained possession had been set aside, and the 2014 order had not been challenged or reviewed on the basis that Lakshman Chandrakar was already deceased. The High Court therefore found no basis to quash the respondents’ pending Section 144 application, leaving the restitution claim to be pursued before the trial court.

The petitioner remained at liberty to seek readmission of his appeal under Order 41 Rule 19 CPC.