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Smt. Vaidehi Kuar Vs. Banshu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 861 of 1976
Judge
Reported inAIR1979All413
ActsCode of Civil Procedure (CPC) , 1908 - Sections 144
AppellantSmt. Vaidehi Kuar
RespondentBanshu and ors.
Appellant AdvocateR.N. Singh, Adv.
Respondent AdvocateSankatha Rai, Adv.
DispositionAppeal allowed
Excerpt:
.....procedure, 1908 - suit for possession and permanent injunction against defendant - decree granting both passed - plaintiff applied for execution and got possession - execution barred by time - defendant applied for restitution of possession - held, he was entitled as injunction was relief consequential to relief of possession - if there was no possession - injunction was void. - - the objection was that the execution application was clearly barred by time and that the delivery of possession in favour of the respondents in pursuance of such an execution application was illegal and incompetent. the appellate court came to the conclusion that the execution application was clearly barred by time. ) otherwise (sic) in pursuance of an order which has been set aside both by the first..........appellant preferred an objection under section 47 of the civil p. c. the objection was that the execution application was clearly barred by time and that the delivery of possession in favour of the respondents in pursuance of such an execution application was illegal and incompetent. this application was contested by the respondents. the executing court dismissed the objection of the appellant, aggrieved, the appellant filed an appeal. the appellate court came to the conclusion that the execution application was clearly barred by time. the appellate court, therefore, allowed the appeal, and set aside the judgment and order passed by the executing court and held that the appellant was entitled to get back possession over the land in dispute. aggrieved, the respondents filed a second.....
Judgment:

A.N. Varma, J.

1. This is an executionsecond appeal arising out of an application filed by the appellant under Section 144, C. P. C. praying for restitution by way of redelivery of possession to the applicant over a piece of land. The application has been rejected by both the courts below and hence this second appeal.

2. The relevant facts are these. A suit was filed by the predecessor-in-interest of the plaintiff-respondents against the defendant-appellant in respect of the piece of land which is the subject-matter of this second appeal, The suit was for following reliefs:--

(a) A decree for possession over the land in dispute.

(b) A permanent injunction asking the defendants not to remain in possession over the land in dispute or from taking earth from the same.

(c) A mandatory injunction directing the defendants to fill up the pits which they have dug over the land in dispute.

3. This suit was compromised. The compromise provided that the plaintiff would in due course sell the land tothe defendants in terms of Clause (d) of the compromise. It further provided that the suit stood decreed in terms of reliefs (a) and (b) quoted above. This decree was passed somewhere in 1956. Nothing appears to have happened for a considerable length of time. In the year 1968 the plaintiff-respondents moved an application for execution of the decree passed in terms of compromise mentioned above praying for delivery of possession over the land in dispute, It is not disputed that this application was initially allowed and possession was delivered through the agency of the court to the respondents on 24-1-1968. Thereafter the execution was struck off in full satisfaction on 9th June, 1968. The appellant preferred an objection under Section 47 of the Civil P. C. The objection was that the execution application was clearly barred by time and that the delivery of possession in favour of the respondents in pursuance of such an execution application was illegal and incompetent. This application was contested by the respondents. The executing court dismissed the objection of the appellant, Aggrieved, the appellant filed an appeal. The appellate court came to the conclusion that the execution application was clearly barred by time. The appellate court, therefore, allowed the appeal, and set aside the judgment and order passed by the executing court and held that the appellant was entitled to get back possession over the land in dispute. Aggrieved, the respondents filed a second appeal in this court which was dismissed.

4. It was, thereafter that the appellant moved an application under Section 144 of the Civil P. C. setting out the above history and claiming that possession should be restored to them, inasmuch as, possession was delivered to the (respondent?) otherwise (sic) in pursuance of an order which has been set aside both by the first appellate court as well as by this court in second appeal. This application of the appellant has been rejected by both the courts below solely on the ground that in view of the fact that there was in operation an injunction in terms of relief (b) claimed in the suit which prohibited the appellant from remaining in possession, it is not possible to direct restitution in favour of the appellant.

5. Both the courts below having rejected the application of the appellant under Section 144 of the Code of Civil Procedure. The appellant has filed this execution second appeal in this court.

6. I have heard learned counsel for the parties at some length. I am clearly of the view that the judgments and orders passed by the courts below are unsustainable in law.

7. Before I deal with the merits of the submission of the parties, I may dispose of a preliminary objection raised by the learned counsel for the respondent. His objection was that the appeal was not maintainable, inasmuch as, the application made by the appellant did not fall within the ambit of Section 144 of the Code of Civil Procedure. He urged that it was really an application under Section 151 of the Code of Civil Procedure. Consequently, the orders passed by the courts below did not amount to a decree within the meaning of Section 2 of Sub-section (2) of the Code of Civil Procedure. Learned counsel placed reliance on some decisions of other High Courts in which it has been held that reference to the term 'order' made under Section 144 of the Code of Civil Procedure does not cover an order passed in execution proceedings. It is on this ground that the learned counsel contended that the appeal was not maintainable. This submission has obviously no force. The controversy, whether an order passed in execution proceedings also falls within the four corner of Section 144 of the Code of Civil Procedure stands concluded by decision of this court reported in Krishna Gopal v. Gokul Prasad (AIR 1970 All 261) (FB) and Smt. Dayawati v. Champa Ram. (1976 All LJ 694). Following these decisions I hold that orders passed in execution proceedings are also subject to applications under Section 144 of the Code of Civil Procedure, provided of course the requirements are fulfilled. There is, therefore, no substance in the preliminary objections raised on behalf of the respondents.

8. I shall not deal with the merits. Both the courts below have been influenced by the decree for injunction passed in the suit. In their opinion, this decree for injunction being operative, the courts are helpless in restoring possession to the appellant.

9. Quite apart from the fact that in my judgment, the decree for injunction does not stand in the way of the appellants being restored in possession over the land in dispute, in my view, the courts below have acted with manifest illegality in refusing to restore possession to the appellant. The courts below were not concerned with the effect of the decree for injunction. The Courts below were called upon to restore possession which had been delivered to the respondents with the aid of the court in pursuance of an order which was admittedly set aside in appeal. Section 144 of Code of Civil Procedure was, therefore, applicable in terms. The proper course for the courts below was, therefore, to restore possession to the appellant, inasmuch as, the respondents had been delivered possession in execution proceedings in pursuance of an order of the court which was set aside. The provision of Section 144 of the Civil Procedure Code obliged the courts below and enjoined them to restore possession to the appellant once the order under which possession was delivered to the respondents was set aside in appeal. On this ground alone the orders passed by the courts below are liable to be set aside. The language of Section 144 of the Code of Civil Procedure is peremptory and it mandates the court to order restitution where the order as a result of which the status of the parties has been altered has been reversed in appeal. The courts below have, therefore, erred in law in not putting the parties in the position which they occupied before the court put the respondents in possession.

10. Even on the question whether the decree for injunction stood in the way of the appellant, I am not inclined to agree with the courts below. In my judgment, relief (b) mentioned in the plaint in terms of which the suit was disposed of was consequential upon relief (a). What was contemplated was that after the respondents were put in possession the appellants must not interfere into the possession of the respondents. Relief (a) provided for delivery of possession. Relief (b) merely said that the defendants shall not remain in possession.The execution application in respect of relief (a) having been dismissed as barred by time, relief (b) could not stand on its own. The lower appellate court while disposing of the objection of the appellant under Section 47 was right in its view that the decree for injunction had really no meaning without the decree for possession.

11. Learned counsel for the respondents posed a question, namely, what if the plaintiff-respondents had entered into possession without the aid of the court? He then posed another question, namely, could not then the decree for injunction have been operative on its own? He urged that if in such a case, the decree for injunction could be operative as an independent decree why not so in the context of the present case. The analogy is misconceived. The difference has arisen because of the intervention of the court. It istrite saying that no one ought to suffer as a result of an act of the court. In the present case, the court having intervened and assisted the respondents in the delivery of possession, it must equally assist the appellant, who had succeeded in getting the initial order directing the delivery of possession set aside in appeal, in being restored to possession.

12. For the reasons stated above, this appeal succeeds and is allowed. The judgments and orders passed by the courts below are set aside. The executing court is directed to redeliver possession to the appellant in accordance with law. Parties to bear their own costs.


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