Inherent Powers Under Section 151 CPC Cannot Be Invoked For Restoration Of Possession When Statutory Remedy Of Restitution Exists: Calcutta High Court

"Section 151 CPC cannot be invoked to seek restoration of possession." High Court at Calcutta, in a significant ruling, held that inherent powers under Section 151 of the Code of Civil Procedure cannot be used to order the restoration of possession when the specific statutory remedy of restitution under Section 144 of the CPC is available.

A bench of Justice Chaitali Chatterjee Das observed that when dispossession occurs pursuant to a judicial order that is subsequently set aside, the aggrieved party must seek restitution under Section 144 rather than alleging a violation of an injunction under inherent powers.

The dispute arose between a brother and sister over a joint property in Salt Lake, Kolkata, originally owned by their parents. During her lifetime, the mother filed a civil suit against the daughter alleging unauthorized occupation and sought an injunction. After the mother passed away, the son was transposed as the plaintiff in his capacity as the executor of the mother's will. The parties filed multiple interlocutory applications regarding local inspection, restoration of possession, and amendment of the plaint, leading to four analogous revisional applications before the High Court.

The primary question before the court was whether a party can seek restoration of possession under Section 151 of the CPC when dispossession occurred due to the implementation of a court order that was later set aside. The court was also called upon to determine whether a transposed plaintiff, acting as an executor, could amend the original plaint to claim personal inheritance rights prior to obtaining a probate.

Local Inspection Allowed To Preserve Estate

The court first addressed the sister's challenge against the trial court's order appointing an advocate commissioner for local inspection under Order XXXIX Rule 7 of the CPC. The sister contended that the suit was merely for declaration and barred by Section 34 of the Specific Relief Act since no recovery of possession was sought, arguing that interlocutory relief could not be granted in a non-maintainable suit.

The bench rejected this technical objection at the interlocutory stage, observing that the brother, acting as the executor of the estate, had a paramount duty to protect the property from unauthorized alterations.

"The executor, being a legal obligation to preserve and protect the estate of the testatrix, is entitled to seek the appointment of an advocate commissioner to inspect the property, ascertain the nature and extent of the damage caused by the sister and report on whether physical possession of any portion of the property has been parted with or not," the court observed.

Section 151 CPC Cannot Replace Statutory Remedy

Addressing the brother's plea for restoration of possession under Section 151 of the CPC, the court analyzed the circumstances of the dispossession. The brother argued that the sister had unlawfully taken possession during the interregnum period, and the court must exercise its inherent powers to undo the wrong.

The court distinguished the present facts from scenarios where a party forcibly dispossesses another in active violation of a subsisting injunction. Here, the possession was handed over to the sister by the police acting on a specific, modified judicial order.

"By no stretch of imagination, it can be said that the order of injunction was violated. If the subsequent order is construed as a modified order pursuant to which possession was restored to the sister, and thereafter, upon the modified order being set aside the question of invoking the inherent jurisdiction of the court under Section 151 of the code of civil procedure does not arise," the bench noted.

Restitution Must Be Claimed Under Section 144 CPC

The court emphasized that the Code of Civil Procedure provides a dedicated mechanism for situations where a court order is reversed or varied. The doctrine of restitution, embodied in Section 144 of the CPC, places an obligation on the court to restore the parties to the position they would have occupied but for the reversed order.

Because the dispossession occurred on the strength of a judicial order that was later set aside, the bench held that inherent powers could not bypass the express statutory provision. The court categorically ruled that "Section 151 CPC cannot be invoked to seek restoration of possession" when the alternative remedy of restitution is available.

Limitations On A Transposed Plaintiff

The court then examined the brother's application to amend the plaint under Order VI Rule 17 of the CPC. The brother sought to add pleadings asserting his personal inheritance and claiming a specific proportional share of the property following his mother's death. The High Court found this amendment fundamentally flawed, clarifying the strict legal boundaries of a transposed plaintiff.

"The law in this regard is very clear that a transposed plaintiff cannot exert any other point than what was claimed by the original owner," the court declared.

Personal Claims Premature Without Probate

The bench elaborated that a party transposed as an executor steps into the shoes of the deceased original plaintiff solely to represent the estate. While the property vests in the executor for preservation, the executor cannot use the ongoing suit to enlarge the original prayers for his own personal benefit as a legatee.

The court noted that "he can take all such steps to preserve and protect the interest of the original plaintiff but cannot prayed anything in excess which would be beneficial for him in his personal capacity." The bench clarified that the brother could only assert his personal title rights on the strength of the probate once it is granted, rendering the current amendment impermissible.

The High Court dismissed the revisional applications challenging the appointment of the advocate commissioner and the refusal to restore possession under Section 151 of the CPC, affirming the trial court's approach on those issues. However, the court set aside the trial court's order allowing the brother to amend the plaint with his personal claims, granting him liberty to file a fresh, legally compliant amendment application to pursue the suit as an executor.

Date of Decision: 24 July 2026