SECTION 144, 145 OF CODE OF CIVIL PROCEDURE 1908

What is Application for restitution? What is Enforcement of liability of surety? Section 144 and 145 of Code of Civil Procedure 1908

Application for restitution and Enforcement of liability of surety are defined under Section 144 and 145 of Code of Civil Procedure 1908. Provisions under these Sections are:


 

Section 144 of Code of Civil Procedure 1908 "Application for restitution"

(1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose the Court which passed the decree or order 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 or such part thereof as has been varied, reversed, set aside or modified, 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.

Explanation.-For the purposes of sub-section (1) the expression "Court which passed the decree or order" shall be deemed to include,-

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;

(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.

(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).

 

STATE AMENDMENTS

Uttar Pradesh- Substitute the following for sub-section (1) of section 144 of the Code:

"(1) Where and in so far as a decree or an order is varied or reversed in appeal, revision or otherwise, 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 for as may be, place the parties in the position which they would have occupied but for such decree or order or such part there of as has been varied or reversed; and for this purpose, the Court may make any orders, including orders for the refused of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal". [U.P. Act No. 24 of 1954]

 

Section 145 of Code of Civil Procedure 1908 "Enforcement of liability of surety"

Where any person has furnished security or given a guarantee-

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree, or

(c) for the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed in the manner therein provided for the execution of decree, namely :-

(i) if he has rendered himself personally liable, against him to that extent;

(ii) if he has furnished any property as security, by sale of such property to the extent of the security;

(iii) if the case falls both under clauses (i) and (ii) then to the extent specified in those clauses, and such person shall, be deemed to be a party within the meaning of section 47 :

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

 

STATE AMENDMENTS

Uttar Pradesh- Substitute the following for section 145;

"145. Where any person has become liable as surety or given any property as security:

(a) for the performance of any decree or any part there of, or

(b) for the restitution of any property taken in execution of any decree, or

(c) for the payment of any money or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding Consequent there on,- the decree or order may be executed in the manner herein provided for the execution of decrees:-

(i) if he has rendered himself personally liable, against him to that extent; and

(ii) if he has given any property as security, by sale of such property to the extent of the security;

such person shall, for the purposes of appeal, be deemed to be a party within the meaning of section 47:

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

Explanation:- For the purposes of this section a person entrusted by a Court with custody of any property attached in execution of any decree or order shall be deemed to have become liable as surety for the restitution of such property within the meaning of clause (b)." [U.P. Act No. 24 of 1954].

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