Restitution is getting back or Re-establishment of the right or property that has been lost due to some erroneous legal decision.
Restitution has not been defined under law but it can be explained as follows;
Where due to any decree or execution of a decree or order any party has lost
- anything or
- any interest or
- provided damages, mesne profit etc
and subsequently, that degree or order has verified [change] or reversed [cancelled] by confirming the previous degree was wrong or erroneous than that affected parties shall get back that lost thing or interest or that damages or profit he has given due to such judgment and all these rights or provided thins things shall be returned to the party; it is called restitution.
Section 144 of CPC
Section 144 of the Code of Civil Procedure, 1908 dealt with restitution, under the heading “application for restitution” it provided;
(1) Where and in so far 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 sub-section (1).
Where to apply?
- at Court of the first instance or
- at appellate court
Remedy against the decree of restitution
The result of the application of a restitution application would be decree according to Section 2 (2) of the Code of Civil Procedure, 1908. Therefore an aggrieved party can file an appeal to get the remedy against any order of restitution.
The underlying principle of restitution is that when someone is deprived of some property or right by any erroneous judgement, order or decree or execution of a decree then the event of a reversal of such judgement may become entitled to restitution of some right or property and it is the duty of the court to that to ensure justice.
No special or specific procedure has been mentioned for restitution under the Code of Civil Procedure, however, the inherent power given to the court under section 151 of the code is applied for the application of restitution.
- degree or order that has been reversed or cancelled
- any party has deprived of something or his right
- that is person must be a party of the suit
- the application for restitution shall be instituted in the court of the first instance.
Though restitution has a little footprint in the law but its necessity is enormous in the code of civil procedure to provide complete and full justice.