§ The four steps

The court acts. A decree is passed, an interim order made, a direction given, and the parties conduct themselves on the footing that it is valid.

The act turns out to be wrong. The decree is reversed in appeal, the interim order is vacated, the direction is shown to have rested on an error.

Someone is worse off, and worse off not through his own fault. He did nothing improper; he was on the receiving end of a court order that has since fallen.

The court must undo it. Because the prejudice flowed from the court's own act, the obligation to repair it is the court's, and it does not depend on anyone being blameworthy.

§ Three consequences of that reasoning

• No fault is required. A decree-holder who executed a valid decree did nothing wrong, and is still required to restore what he took when the decree falls. The obligation is restitutionary, not compensatory for a wrong.

• The remedy lies in the same proceeding. Since the duty is the court's own, it is discharged on an application in the proceeding that caused the loss, not by a fresh suit. Section 144(2) makes that explicit.

• The measure is restoration, not enrichment. The party is put back where he was, and receives no more than he lost.

Section 144

Restitution where a decree or order is varied, reversed, set aside or modified: the court shall place the parties, so far as may be, in the position they would have occupied but for it, with refund of costs, interest, damages, compensation and mesne profits

Section 151

Restitution and recall where the case falls outside Section 144, as where a benefit was obtained under an interim order later vacated, or an order was passed without notice to a party

Section 152

Correction of clerical and arithmetical mistakes and accidental slips, so that the record expresses what the court decided and no party suffers from the court's own slip

Section 153 and 153A

Amendment of any defect or error in a proceeding, and the preservation of that power in the trial court after an appeal is summarily dismissed

Order XXI Rule 93

Repayment of the purchase money to an auction purchaser where a sale is set aside, so that he does not bear the loss of a sale the court itself has undone

Order XXII Rule 9

Setting aside an abatement on sufficient cause, so that a party is not deprived of his suit by a lapse the court's own process contributed to

§ The maxim beyond the Code

Limitation. Where a party is delayed by the court's own process, as by the time taken to obtain a certified copy, the general scheme of the Limitation Act, 1963 excludes that time, and the maxim supplies the reasoning.

Interim orders. Where a party has been restrained by an injunction later found to have been wrongly granted, Section 95 provides compensation, and the same principle informs the undertakings in damages that courts require before granting such relief.

Delay in pronouncement. Where a matter stands reserved for long and a party's rights are affected by the passage of time, the maxim is invoked to prevent that delay from being counted against him.

§ Lex non cogit ad impossibilia

The law does not compel a man to do what he cannot possibly do. The two maxims are often applied together, and they answer slightly different complaints.

Actus curiae neminem gravabit addresses a party who has been harmed by what the court did.

Lex non cogit ad impossibilia addresses a party who is blamed for failing to do something he could not do, as where a step could not be taken because the court's own record or process was not available.

Together they mean that a litigant is answerable for his own conduct, and not for the institution's.

§ Four limits worth stating

• The prejudice must flow from the act of the court. A party who suffers because of his own delay, default or choice cannot invoke the maxim. It is not a general equity against hardship.

• It does not override an express provision. Where the Code has provided for a situation and fixed conditions, the maxim does not supply relief on easier terms; that would be to use a principle to defeat a statute.

• It does not create jurisdiction. A court that lacked authority to act does not acquire authority to repair, though the invalidity of what it did may be established in the ordinary way.

• It restores; it does not enrich. The party is placed where he would have been but for the court's act, and a claim for more than that falls outside the principle.