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Narayan Laxman Ayarkar and ors. Vs. Vishnu Waman Dhawale and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 917 of 1956
Judge
Reported inAIR1957Bom117; (1957)59BOMLR205
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 144 - Order 1, Rule 8 - Order 20, Rule 12(1) - Order 21, Rules 35 and 36; Transfer of Property Act, 1882 - Sections 52
AppellantNarayan Laxman Ayarkar and ors.
RespondentVishnu Waman Dhawale and anr.
Appellant AdvocateV.S. Desai and V.M. Limaye, Advs.
Respondent AdvocateK.V. Joshi, Adv.
Excerpt:
.....decree confirmed by district court in appeal--'lands transferred by appellants to tenants pending appeal--decree of trial court reversed by high court and appellants held not entitled to possession of lands--application by respondents for restitution under section 144 of code--whether tenants of appellants affected by rule of lis pendens--order for restitution whether can be passed against tenants.;in an application for restitution under section 144 of the civil procedure code, 1908, the court is entitled to try all questions relating to execution, discharge or satisfaction of the decree not only between the parties to the suit but also between representatives of the parties.;rajjabali khan talukdar v. faku bibi (1930) i.l.r. 58 cal. 1070, dissented from.;kurgodigouda v. ningangouda..........as tenants of appellants nos. 1 and 2 during the pendency of the appeal, they were bound by the decree passed by thiscourt in second appeal from the decree in suit no. 67 of 1943 and they were liable to deliver possession as directed by the consent decree. the learned appellate judge accordingly passed an order that a warrant for possession in favour of respondents nos. 1 and 2 do issue under order 21, rule 35 of the civil p. c. against that order this appeal has been filed by appellants nos. 1 to 4 3. mr. v.s. desai, who appears on behalf of the appellants, has raised two contentions in support of the appeal; (1) that restitution cannot be ordered in these proceedings against appellants nos. 3 and 4 who are tenants of appellants nos. 1 and 2, and (2) that an order for actual.....
Judgment:

Shah, J.

1. This second appeal arises out of restitution proceedings. Appellants Nos. 1 and 2 filed Suit No. 67 of 1943 in the Court of the Civil Judge, Junior Division, at Pen against respondents Nos. 1 and 2 and another person. The suit was filed under Order 1, Rule 8, of the Civil Procedure Code by appellants NOS. 1 and 2 in their representative capacity. Appellants Nos. 1 and 2 claimed to be the Guraos of the Rameshwar Temple at Pen. In the suit they claimed possession of five lands alleging that the lands were granted in Inam to the Rameshwar Temple and were managed through Vahiwatdars. This suit was decreed on 13th September, 1946, and in December 1946 in execution of the decree appellants Nos. 1 and 2 obtained possession of the lands. Against the decree of the trial Court an appeal was filed by respondents Nos. 1 and 2 to the District Court and in appeal the decree of the trial Court was confirmed. In second appeal to this Court a consent decree was passed on 17th April, 1953. By that decree it was provided inter alia:

'That the Dhavale Gurav family including the defendants (respondents 1 and 2) are entitled to and do recover and retain possession of and enjoy the income of the lands (in suit) and do take and receive the cash allowance and whatever offering and Naivedya in cash or kind that may be placed before the Deities by the devotees in lieu of their services aforesaid'.

Respondents Nos. 1 and 2 applied by Miscellaneous Application No. 12 of 1953 to the Court of the Civil Judge, Junior Division, at Pen for an order for restitution of possession of the lands of which they had been deprived in December 1946 in execution of the decree of the trial Court. By the application respondents Nos. 1 and 2 also claimed an order that the cash allowance to which they were entitled under the consent decree be paid to them. The learned trial Judge passed an order granting symbolical possession to respondents Nos. 1 and 2 of the lands of which they had been dispossessed. He held that appellants Nos. 3 and 4 having come on the land as tenants of appellants Nos. 1 and 2 during the pendency of the appeal to the District Court, they were entitled to protection and an order for actual possession could not be passed against them. The learned Judge also held that no order relating to cash allowance could be passed in the restitution proceedings In favour of respondents Nos. 1 and 2. The learned Judge accordingly passed an order for issue of a warrant under Order 21, Rule 36, of the Civil Procedure Code, for delivery of symbolical possession of the lands described in the application.

2. Against the order passed by the trial Court an appeal was preferred to the District Court at Kolaba. In appeal, the learned District Judge held that appellants Nos. 3 and 4 having entered the land as tenants of appellants Nos. 1 and 2 during the pendency of the appeal, they were bound by the decree passed by thisCourt in Second Appeal from the decree in Suit No. 67 of 1943 and they were liable to deliver possession as directed by the consent decree. The learned appellate Judge accordingly passed an order that a warrant for possession in favour of respondents Nos. 1 and 2 do issue under Order 21, Rule 35 of the Civil P. C. Against that order this appeal has been filed by appellants Nos. 1 to 4

3. Mr. V.S. Desai, who appears on behalf of the appellants, has raised two contentions in support of the appeal; (1) that restitution cannot be ordered in these proceedings against appellants Nos. 3 and 4 who are tenants of appellants Nos. 1 and 2, and (2) that an order for actual possession cannot be passed against appellants Nos. 3 and 4 in an application for restitution. Mr. Desai says that an order for restitution can be passed only against parties to the suit and not against persons who claim under a title derived from the parties to the suit, and he contends that Section 144 of the Civil P. C., does not authorise a Court dealing with an application for restitution to pass an order against a person other than a person expressly impleaded as a party to the suit. Section 144 of the Civil P. C., in so far as it is material, provides:

'Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been, varied or reversed ......'.

The decree passed by the trial Court in this case has been reversed by the consent decree and appellants Nos. 1 and 2, who were declared entitled to possession by the decree of the trial Court, have been held not to be entitled to possession of the property. If appellants Nos. 1 and 2 were in actual possession, it is conceded they were bound, under the express terms of Section 144 of the Code of Civil Procedure, to restore possession of the property and if they failed to do so, the Court could order restitution of the property. But, says Mr. Desai, it is not open to the Court to pass an order for restitution against a person who was not a party to the suit, even if he claims under a party who has obtained possession under a decree which has been set aside in appeal. In support of that contention Mr. Desai relies upon Rajjabali Khan v. Faku Bibi : AIR1932Cal29 .

4. In that case A obtained an ex parte decree for possession against B and leased the land to C. The ex parte decree was thereafter set aside and A's suit dismissed. B then applied for restoration of possession. The Court held that he was entitled to an order as against A but not as against A's lessee C. It was held that restitution can only be had in respect of matters done under the decree or as an immediate consequence thereof and that the summary procedure under Section 144 is wholly Inappropriate for adjudicating complicated questions that may arise if rights which strangers may have acquired in the meantime are to be investigated.

5. Relying upon this case Mr. Desai contends that an order for restitution cannot be passed in the circumstances of the present case and that respondents Nos. 1 and 2 should have been directed to file a suit to obtain possession of the property. It appears that the Calcutta High Court held in Rajjabali's case that an application for restitution is not an appropriate proceeding for trying in a summary enquiry disputes relating torights of strangers where complicated questions have to be determined. But it is difficult to appreciate what complicated questions arise in the present case in adjudicating upon the dispute between respondents Nos. 1 and 2 and appellants Nos. 3 and 4.

Admittedly appellants Nos. 3 and 4 are tenants of appellants Nos. 1 and 2 and they were inducted in the land after appellants Nos. 1 and 2 obtained possession of the land in execution of the decree of the Court of first instance. Whether they are or are not bound by the decree is the only question which falls to be determined in this appeal; and it cannot reasonably be contended that it is complicated question. We may however observe that we do not agree with the view expressed in Rajjabali's case that an enquiry under Section 144, Civil P. C., is a summary enquiry, and the Court has a discretion to hold or not to hold an enquiry because questions of complicity or difficulty arise.

6. Section 52 of the Transfer of PropertyAct makes transfers during the pendency of anysuit or proceeding, which is not collusive of anyright to immoveable property which is directlyand specifically in question, ineffective as againstthe person who may ultimately be declared entitled thereto, except where the transfer has beeneffected under authority of the Court. In thepresent case, it is not suggested that the suitfiled by appellants Nos. 1 and 2 against respondents Nos.1 and 2 is collusive. The Civil Court wascompetent to entertain the suit and ultimatelyrespondents Nos. 1 and 2 were declared entitledto the lands in dispute.

Appellants Nos. 3 and 4 being transferees of the land during the pendency of the appeal are, therefore, affected by the rule of lis pendens enunciated in Section 52 of the Transfer of Property Act. Their Lordships of the Privy Council held in Parmeshari Din v. Ram Charan , that a transferee of property pendente lite must be treated as a representative in interest, and as such bound by the result of the suit, and the decree can be executed against him although he was not a party to the suit.

If in this suit the property had been transferred by respondents Nos. 1 and 2 during the pendency of the suit and ultimately appellants Nos. 1 and 2 were declared entitled to obtain possession of the property, the transfer by respondents Nos. 1 and 2 could not have been set up by the transferees as a defence to an execution application filed at the instance of appellants Nos. 1 and 2. We therefore see no reason to hold that transferees of the subject-matter of the suit from appellants Nos. 1 and 2 are entitled successfully to set up their right as purchasers which is ineffective as a result of the rule of lis pendens against the claim of respondents Nos. 1 and 2.

This Court has also taken the view Vide Kurgodiganda v. Ningangoda : AIR1917Bom210 , that proceedings under Section 144 of the Civil P. C., for restitution are substantially in the nature of execution proceedings. If under Section 47 of the Civil P. C., the Court is entitled and indeed bound to try all questions relating to execution, discharge or satisfaction of the decree not only between the parties to the suit but also between representatives of the parties, there is no reason why in an application for restitution those questions cannot be tried. It may be mentioned that the principle of Rajjabali's case : AIR1932Cal29 , which Mr. Desaj relied upon, has not been accepted by Niamatulla, J. in Sukhan Singh v. Uma Shankar : AIR1935All65 .

7. The contention raised by Mr. Desai that even though respondents Nos. I and 2 succeeded in appeal to this Court they are not entitled to actual possession from appellants Nos. 3 and 4 in restitution proceedings cannot be countenanced. Under the decree of the High Court respondents Nos. 1 and 2 are entitled to actual possession pf the land in suit, and, in our judgment, an order for restitution can be passed against appellants Nos. 3 and 4 as representatives of appellants Nos. 1 and 2. The learned appellate Judge was, in our judgment, right in directing that a warrant under Order 21, Rule 35 of the Civil P. C., do issue against appellants Nos. 3 and 4.

8. Respondents Nos. 1 and 2 have filed cross-objections to the decree appealed from. They have claimed that an order should have been passed for payment of cash allowances in their favour as well. In our view, that, order cannot be passed in restitution proceedings. The cash allowance was not the subject-matter of the suit and the amount claimed was not recovered by appellants Nos. 1 and 2 in execution of the decree of the trial Court. Therefore, no order can be passed in favour of respondents Nos. 1 and a for restitution of the cash allowance. The remedy of respondents Nos. 1 and 2 is to approach the Collector if he has withheld from them the cash allowance, and if the Collector has paid over the amount, to file a suit to recover the amount from the person who has recovered the same from the Collector contrary to the claim of respondents Nos. 1 and 2. Respondents Nos. 1 and 2 will, however, be entitled to mesne profits from the date of the consent decree in Section A. 37/1951. The amount of mesne profits will be ascertained under Order 20, Rule 12 (1) (c), of the Civil P. C.

9. The appeal filed by the appellants will, therefore, be dismissed with costs. The cross-objections are remanded to the trial Court for ascertaining mesne profits payable by the appellants. Costs of the cross-objections will be costs in the trial Court.

10. Appeal dismissed.


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