1. These civil miscellaneous second appeals arise out of two applications for restitution.
2. The appellants claim through one Bhandari who filed two suits O. S. NOS. 236 and 237 of 1937 for recovery of possession of two parcels of land which he alleged were held on chalgeni or terminable leases by Juam Souza and Thomas Souza. The suits were decreed on 30th August 1938. On 25th October 1938 one Pedru Souza who will hereafter be referred to as Pedru filed O. S. No. 505 of 1938 against Bhandari praying for a declaration that the properties involved in both O. S. NOS. 236 and 237 of 1947 were his mulgeni holdings and that the decrees in those two suits were not binding on him and praying also that Bhandari should be restrained by an injunction from executing the decrees and disturbing his possession.
3. In R. E. A. Nos. 786 and 787 of 1938, Bhandari applied for delivery of possession of both the properties alleging obstruction by Pedru which he sought removal of. The applications were dismissed on the ground that the suit filed by Pedru for establishing his right to those properties was still pending. O. S. No. 505 of 1938 was dismissed on 21st July 1941. Relying on that dismissal Bhandari filed two fresh applications R. E. A. Nos. 495 and 496 of 1942 which were ordered under Order 21, Rule 98, Civil P. C. on 9th August 1942. Meanwhile, Pedru filed an appeal in the Court of the Subordinate Judge of Mangalore against the decree of dismissal in O. S. No. 505 of 1938 and this appeal was allowed in his favour on 16th of March 1944. It is admitted that Bhandari took possession of the properties in pursuance of the orders in R. E. A. Nos. 495 and 496 of 1942, Pedru sought restitution in R. E. P. Nos. 356 and 357 of 1944 and they have led to the present second appeals, restitution having been ordered by both the Courts below.
4. Two points have been raised on behalf of the appellants by their learned counsel Mr. Srinivasagopalachari. Firstly it is argued that as Pedru filed no suits as contemplated by Order 21, Rule 103, Civil P. C., within one year of the orders dated 4th August 1942 those orders must be regarded as conclusive and Pedru cannot put forward any title inconsistent with them. Reliance is placed in support of this argument on three decisions which I shall immediately proceed to deal with. P. Krishna Rao v. Lakshmana, 4 Mad. 302, which is the first of the cases cited arose under the Civil P. C. of 1859 which contained provisions almost identical with the relevant provisions of the present Code. The defeated claimant in that case did not file a suit within one year of the claim order against him. The purchaser of the property in execution of the decree, however, filed a suit for recovery of possession of the property within one year from the date of the claim order. The defeated claimant was a defendant in that suit and sought to contest the order which had been passed against him. It was held that he should not be permitted to do so and it was observed that the order was and was intended to be a summary declaration of want of title in the objector which declaration would amount to a final decision of the question between the parties if the party aggrieved did not take the course indicated by the institution of a suit to supersede it. Kumaram Uni Achan v. Kunhi Krishnan Nair 75 I. C. 814: A. I. R. 1924 Mad. 602, is a similar, case in 'which also the contention was that the defeated claimant could as a defendant raise the question of title without indulging in what was described as a futility namely the formality of a fresh suit. The argument was rejected and a Bench of this Court again held that the fact that there was a pending suit regarding the title to the property and that the defendant had filed a written statement in it claiming title did not absolve him from the obligation of filing a suit under Order 21, Rule 103 of the Code if he intended to contest the order under Order 21, Rule 101.
5. It would be noticed that in both these cases there was no suit at all filed by the defeated objector and he only sought his written statement to be treated as a plaint such as is contemplated by Order 21, Rule 103.
6. In Palaniappa Chettiar v. Ramaswami Servai : AIR1937Mad582 , Venkataramana Rao J. had to deal with a case where an objector had, even before an adverse order was passed against him, filed a suit to establish his title to the property. The learned Judge held that that was sufficiently a suit within the meaning of Order 21, Rule 103 of the Code.
7. In the case before me the facts are quite clear. Pedru was quite vigilant and took the prudent step of filing a suit sufficiently early so that he may not be disturbed in his possession in pursuance of decrees, which as it now turns out, are not binding on him. His suit was, as already stated, dismissed in 1941. But he took the matter up to the appellate Court and the appeal which for this purpose must certainly be regarded as a continuation of the suit was pending at the time when the claim orders were passed against Pedru. It seems to me that the law does not require that he should have withdrawn that appeal and started again with fresh suits for an adjudication of the identical question involved. There would be obvious difficulties in the way of his withdrawing the appeal because if he withdrew the appeal it could certainly be argued on the other side that the decree of the Courts below would stand confirmed. The only thing perhaps that could be suggested is he could have continued the appeal and filed fresh suits also. This again seems to me to be equally futile. In the absence of any definite decision binding, on me laying down that even where there is a suit or an appeal filed by the defeated objector pending at the time when the claim order is made, it is still legally obligatory on his part to file another suit after the passing of the order. I am not prepared to hold that notwithstanding the later adjudication in Pedru's favour his title must be regarded as having been negatived by his inaction in so far as he did not file a suit within one year after the passing of the claim orders.
8. There is still another aspect of the matter. Assuming for a moment that the argument on behalf of the appellant must be accepted in this respect and that Pedru's title must be taken to have been negatived by the claim orders coupled with the circumstance that no suits were filed within one year thereafter, it cannot be forgotten that in the adjudication of 1944 between the same parties Pedru's title was upheld. Of two inconsistent decisions between the same parties in regard to the same matter it is well established law that the later will prevail. However the matter might have stood had there not been the judgment in A. S. No. 111 of 1943, I do not see how the Courts can avoid giving full effect to Pedru's title which is established by the adjudication in that appeal.
9. The second point taken on behalf of the appellants is that Pedru cannot be given possession of the lands or mesne profits or compensation for loss or destruction of trees because none of these reliefs was asked for in his suit O. S. No. 505 of 1938 and the decree in A. S. No. 111 of 1943 which arose out of that suit only gave him a declaration and injunction. The argument is that he can have restitution by execution only of those reliefs which were granted to him but he can have nothing more.
10. This argument, again, I am unable to accept. It is true that if regard is to be had to the strict language of Section 144, Civil P. C., it is doubtful whether restitution can be granted in this case. It is, however, well settled, and this has not been disputed by the appellants' learned counsel that the jurisdiction to grant restitution is not confined to those cases which directly fall within the strict language of Section 144 and that the power and the duty of the Court to grant restitution is extensive and is not circumscribed by the wording of Section 144. This has been laid down in Jai Berham v. Kedarnath Marwari, 2 pat. 10 : A. I. R. 1922 P. C. 269. While conceding that, the Court has inherent power to grant restitution Mr. Srinivasagopalachari still argued that since Pedru did not amend his memorandum of appeal and did not seek larger relief than what was actually decreed in A. S. No. 111 of 1943 he cannot be permitted to avail himself of the procedure by way of restitution. I shall briefly deal with the cases cited in support of this position. There has been, no doubt, no attempt to define with any particularity or precision the extent of the power of the Court to grant restitution as part of its inherent jurisdiction and perhaps in the nature of things it is not possible so to define it. As pointed out in J. P. Rego v. Ananthamathi I. L. R. (1942) Mad. 949 : A. I. R. 1942 Mad. 472, one rule however has been evolved namely that the extra-ordinary powers conferred by Section 151 could not be invoked where the equities are evenly balanced to cover an order 'which only sets right one injustice by the infliction of another or as it is said robs Peter to pay Paul.' A case of that kind was the decision reported in Rajarao v. Ananthanarayanan Chetti : AIR1922Mad228 , where the Court refused to exercise its inherent powers of restitution as the interests of innocent third parties were likely to be seriously prejudiced. In Subbarayudu v. Yerram Setti Seshasani, 40 Mad. 299 : A. I. R. 1917 Mad. 293, the Court exercised its inherent powers in circumstances which are somewhat significant for the purpose of the present case. A decree for money was transferred and the transferee was executing it, the transfer having been recognised notwithstanding the objection of the judgment-debtor. Meanwhile the judgment-debtor and another filed a suit for obtaining a declaration that the transfer of the decree was invalid and for an injunction restraining the transferee from executing the decree and receiving the amount which had been deposited in Court for its satisfaction. The suit passed through several vicissitudes and ultimately after a remand by the High Court a decree was made granting the declaration and the injunction asked for. The judgment-debtor then applied to recover from the transferee decree-holder the amount which he had already withdrawn. The learned Judges felt no difficulty in ordering restitution notwithstanding that there was no prayer at any stage in the litigation which terminated in the High Court seeking a direction for payment of the amount by the transferee-decree-holder to the judgment-debtor. Palaniappa Chettiar v. Ramanathan Chettiar : AIR1934Mad320 is a similar case where also restitution in the shape of a direction for the payment of a certain sum of money was ordered notwithstanding that the person seeking restitution only obtained a decree granting a declaration and an injunction.
11. I do not regard as helpful the decision in Bhimana Gowd v. Siddalinganna Gowd : AIR1927Mad898 which was one of the cases particularly relied upon by Mr. Srinivasagopalachari. A claim order had been made against a certain person who thereafter filed a suit for recovery of possession of the property covered by the claim proceedings but did not ask for mesne profits. The suit was decreed and possession was obtained in pursuance of the decree. A subsequent application to recover mesne profits by way of restitution was dismissed on the ground that mesne profits could not be awarded by way of restitution. Prom the peculiar facts it is quite apparent that for no imaginable reason the plaintiff-petitioner failed to ask for a relief which he could easily have asked for in the suit and I am unable to gather from the decision any principle which can be extended to the present case.
12. From the facts already stated, it is clear that the orders dated 4th August 1942 were based on the dismissal of O. S. No. 505 of 1938. When the decree in O. S. No. 505 of 1938 was reversed in appeal it would seem as if there should be restitution as a matter of course. In my opinion, the mere fact that in the decree as drawn up in A. S. No. 111 of 1943 there is no direction for delivery of possession or for the payment of mesne profits or of compensation is no reason whatever for the Court refusing those reliefs when it considers them appropriate. It cannot be denied that these reliefs necessarily flow out of Pedru's title to the properties in question.
13. The judgments of the Courts below are therefore correct and must be upheld. These civil miscellaneous second appeals are dismissed with costs. Leave refused.