'A' obtained a decree ex-parte against 'B' and in execution of the decree brought the properties of 'B' to sale and himself became the purchaser. On appeal by 'B', the appellant court set aside the decree and remanded the suit for re-hearing. Then 'B' applied for restitution........ Is 'B' entitled to restitution?

Question: 'A' obtained a decree ex-parte against 'B' and in execution of the decree brought the properties of 'B' to sale and himself became the purchaser. On appeal by 'B', the appellant court set aside the decree and remanded the suit for re-hearing. Then 'B' applied for restitution. While that application was pending, 'A' then contended that as the suit had been decreed, no restitution can be granted. Is 'B' entitled to restitution? [UPJS 2023]

Find the answer to the mains question only on Legal Bites. ['A' obtained a decree ex-parte against 'B' and in execution of the decree brought the properties of 'B' to sale and himself became the purchaser. On appeal by 'B', the appellant court set aside the decree and remanded the suit for re-hearing. Then 'B' applied for restitution. While that application was pending, 'A' then contended that as the suit had been decreed, no restitution can be granted. Is 'B' entitled to restitution?]

Answer

In this scenario, 'B' (the appellant) initially had a decree obtained against them ex-parte by 'A.' However, the appellate court set aside the decree and ordered a re-hearing of the suit. Subsequently, 'B' applied for restitution. 'A' argued that because the suit had already been decreed once, no restitution could be granted.

In this situation, 'B' is indeed entitled to restitution. The key point is that the appellate court has set aside the initial decree and ordered a re-hearing of the suit. When a decree is set aside on appeal, it essentially nullifies the previous legal effects of that decree. Therefore, 'B' has the right to seek restitution, which is a legal remedy to restore the parties to the position they were in before the erroneous decree was passed.

In essence, when the appellate court ordered a re-hearing of the suit, it recognized that the initial decree was not valid. As a result, 'B' has a legitimate claim for restitution to be placed in the position they would have been in if the erroneous decree had not been passed. 'A's argument that no restitution can be granted after the initial decree is not valid in this context because the decree has been set aside by the higher court, and the case is being re-heard.