Section 151 CPC Cannot Be Invoked For Restoration Of Possession When Statutory Remedy Under Section 144 Exists: Calcutta High Court

"Restoration of possession in this case cannot be allowed by exercising inherent power when alternative remedy is available." Calcutta High Court, in a recent ruling, held that the inherent powers of a civil court under Section 151 of the Code of Civil Procedure (CPC) cannot be invoked to seek restoration of possession if the dispossession occurred pursuant to a judicial order that was subsequently set aside.

A single-judge bench of Justice Chaitali Chatterjee Das observed that in such circumstances, the aggrieved party must pursue the specific statutory remedy of restitution available under Section 144 of the CPC.

Background Of The Dispute

The dispute arose between a brother and sister over a property in Salt Lake, jointly owned by their late parents. The original suit was filed by the mother against the daughter, alleging unauthorised occupation and seeking a declaration of her share and an injunction. During the pendency of the suit, the mother passed away, and the son, claiming to be the executor of her will, was transposed as the plaintiff. Multiple revisional applications were filed before the High Court challenging a composite trial court order that had allowed the son's applications for local inspection and amendment of the plaint, while rejecting the daughter's application for restoration of possession.

Questions Before The Court

The primary question before the court was whether inherent powers under Section 151 of the CPC could be invoked for restoration of possession when dispossession occurred through 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 plaint to claim personal rights in the suit property prior to obtaining probate.

Scope Of Inherent Powers Under Section 151 CPC

The court first examined the daughter's claim for restoration of possession. She contended that she was dispossessed from certain portions of the property by the police, who were acting on a modified interim order passed by the trial court. Because that modified order was later set aside by the High Court, she argued that the trial court ought to have restored her possession immediately by exercising its inherent powers under Section 151 of the CPC.

Statutory Remedy Bars Inherent Jurisdiction

Rejecting this argument, the High Court clarified that the dispossession was not a high-handed act or a violation of an injunction, but was executed pursuant to a valid judicial order at the time. The court noted that since the action was based on an order that was subsequently reversed, it squarely attracted the doctrine of restitution. The bench emphasised that when a specific statutory mechanism for restitution exists, inherent powers cannot override it.

"In such circumstances, Section 151 CPC cannot be invoked to seek restoration of possession... the restoration of possession in this case cannot be allowed by exercising inherent power when alternative remedy is available."

Limits On A Transposed Plaintiff's Rights

Addressing the trial court's decision to allow the son to amend the plaint under Order VI Rule 17 of the CPC, the High Court found a fundamental flaw in the proposed amendments. The son had been transposed as the plaintiff strictly in his capacity as the executor of his late mother's will. However, through the amendment, he sought to alter the prayers to declare his personal inherited share (5/6th) in the suit property.

Executor Cannot Claim Personal Benefits

The court explained that under Section 211 of the Indian Succession Act, the estate vests in the executor solely to preserve and protect the property until probate is granted. A transposed plaintiff stepping into the shoes of the original owner cannot enlarge the scope of the suit to serve his personal interests. Setting aside the trial court's order allowing the amendment, the bench ruled that personal claims must wait until the probate is officially granted by a competent court.

"A transposed plaintiff cannot exert any other point than what was claimed by the original owner... He can take all such steps to preserve and protect the interest of the original plaintiff but cannot pray anything in excess which would be beneficial for him in his personal capacity."

Local Inspection By Advocate Commissioner Upheld

The court then upheld the trial court's order allowing the appointment of an Advocate Commissioner under Order XXXIX Rule 7 of the CPC. The sister had opposed this, arguing that the main declaratory suit was not maintainable without a prayer for recovery of possession, relying on Section 34 of the Specific Relief Act, 1963. She contended that interlocutory relief cannot be granted if the final relief is barred.

Duty To Preserve The Estate

The High Court dismissed this objection, noting that the executor has a strict legal obligation to protect the estate of the testatrix. Ascertaining the extent of damage caused to the property and verifying the current physical possession is a valid ground for local inspection. The court held that the maintainability of the final relief does not bar this necessary interlocutory fact-finding step to preserve the suit property.

Final Directives Of The Court

The High Court dismissed the revisional applications challenging the refusal to restore possession under Section 151 CPC and the appointment of the Advocate Commissioner. However, it set aside the trial court's order that allowed the amendment of the plaint. The court granted the transposed plaintiff liberty to file a fresh amendment application restricted to his capacity as an executor, directing the trial court to dispose of it expeditiously.

Date of Decision: 24 July 2026