Court Must Restore Possession To Dispossessed Party If Ex-Parte Decree Is Set Aside Even If Property Descriptions Differ: Andhra Pradesh High Court

"Once an ex parte decree is set aside under Order 9 Rule 13, the court is empowered to reverse the actions taken during execution, restoring the party to their original position," High Court of Andhra Pradesh, in a significant ruling dated April 29, 2026, held that a defendant dispossessed of property through the execution of an ex-parte decree is entitled to restitution under Section 144 of the CPC once that decree is set aside.

A single-judge bench of Justice Ravi Cheemalapati observed that the trial court must facilitate the restoration of possession based on the actual property delivered by the court bailiff, rather than dismissing the application due to discrepancies in property descriptions.

The matter arose from an eviction suit filed by the respondent-plaintiff for recovery of vacant possession. An ex-parte decree was initially passed against the petitioner-defendant, leading to the filing of an execution petition where the property was delivered to the plaintiff via a court bailiff on February 3, 2021. However, the ex-parte decree was subsequently set aside, prompting the defendant to seek restitution of possession under Section 144 read with Section 151 of the CPC.

The primary question before the court was whether a defendant is entitled to the restoration of possession under Section 144 CPC after an ex-parte decree is set aside. The court was also called upon to determine whether a restitution petition can be dismissed solely because the property description in the restitution application differs from the original suit schedule.

Mandatory Nature Of Restitution Under Section 144 CPC

The court emphasized that the doctrine of restitution is intended to ensure that no party suffers due to the act of the court. Justice Cheemalapati noted that when an ex-parte decree—which served as the basis for dispossession—is set aside, the status quo ante must be restored. The court is under a duty to reverse the consequences of an order that has been subsequently vacated.

"In the instant case, since the defendant was dispossessed from the property in execution proceedings initiated pursuant to ex parte decree, he is entitled to be restored back into possession, since the said ex parte was set aside," the bench observed.

Effect Of Setting Aside Decree Under Order 9 Rule 13

The court clarified that once a decree is set aside under Order 9 Rule 13 of the CPC, any actions taken during the execution of that decree lose their legal foundation. The court is empowered and obligated to use its inherent powers and statutory provisions to put the parties back into their original positions as they stood before the execution of the now-defunct decree.

Trial Court Erred In Dismissing Petition Over Property Identity

The respondent had argued that the property mentioned in the restitution petition was different from the suit schedule and that Section 144 only applies to property owners. The High Court rejected these contentions, noting that the trial court's dismissal based on a lack of "consensus ad idem" regarding the property description was legally flawed. The focus should have been on what was actually taken from the defendant.

"It would have been appropriate to order restoring back possession of the property that was delivered to the decree holder by the bailiff under delivery warrant," the court remarked.

Bailiff’s Report Is Crucial Evidence For Restitution

The High Court pointed out that the trial court failed to consider vital execution records. The bench noted that the delivery warrant, the bailiff’s report, and the panchanama recorded at the time of dispossession are the primary documents that identify the exact property to be restored. Ignoring these documents leads to an "erroneous view" of the dispute.

"The impugned order nowhere specifies that the learned trial Judge had taken into consideration the warrant, bailiff’s report and the panchanama recorded at the time of delivery, which would aid the Court in coming to the right conclusion," the judgment stated.

Remittal For Fresh Adjudication

The High Court concluded that the matter required a fresh look based on the execution records. It held that the defendant must be put back into possession of whatever property was taken by the bailiff under the delivery warrant in the execution petition. The technical differences in descriptions provided by the parties in their pleadings should not defeat the ends of justice.

The High Court allowed the Civil Revision Petition and set aside the trial court's order. The matter has been remitted to the VII Additional Civil Judge (Senior Division), Visakhapatnam, with directions to pass fresh orders to put the petitioner back into possession of the property from which he was dispossessed on February 3, 2021, after verifying the bailiff's execution reports.

Date of Decision: 29 April 2026