1. This appeal arises out of an application, E. A. No. 37 of 1966 in O. S. No. 72 of 1959 on the file of the District Munsif Court, Poonamallee, filed under Section 144. Civil P. C. for restitution. The facts leading up to the application are these: One Kesava Naicker (respondent 1 in the application) had obtained a money decree in O. S. 255 of 1957 against Munuswami Gramani (respondent 2 in the present application) and, in execution of that decree brought to sale the items of properties covered by the present application. The present appellant Sundaramurthi Gramani, who is the younger brother of Munuswami Gramani filed a claim petition. E. A. 1289 of 1958 under Order XXI, Rule 58, Civil P. C. contending that the properties were the joint family properties of himself and his brother Munuswami Gramani, that there had been no division between them, that he (Sundaramurthi) was entitled to an undivided half share and that his undivided half share should be released from attachment. This claim petition was dismissed on 4-12-1958. Thereupon, Sundaramurthi filed a suit under Order XXI, Rule 63. Civil P. C. numbered as O. S. 72 of 1959 in the same court. The defendants to the suit were Kesava Naicker and Munuswami. The suit was dismissed by the learned District Munsif on 31-3-1960. Ex. B-1 is a copy of the judgment. Sundaramurthi carried the matter in appeal. The appeal, A. S. No. 132 of 1960, was ultimately allowed on 27-7-1963 by the learned District Judge. Ex. B-2 is a copy of the judgment.
2. Notwithstanding the claim suit and the appeal, the execution in O. S. No. 255 of 1957 proceeded. The properties were purchased in court auction by one Ramaswami Chetti and he also took delivery, through the executing Court of the entire properties without any objection being raised by Sundaramurthi. Sundaramurthi, however, filed EA. 37 of 1966 in O. S. 72 of 1959 under Sec. 144, Civil P. C. claiming restitution by recovery of possession of the entire properties from Ramaswami Chetti. In this application, he impleaded Ramaswami Chetti as the third respondent, the first two respondents being Kesavan Naicker and Munuswami Gramani.
3. The application was resisted by Ramaswami Chetti. He contended that the applicant had sought release only of his undivided half share, that that claim alone had been recognized and that in order to recover that undivided half share he must file a separate suit for partition. This contention was, in effect, accepted by the learned District Munsif, who tried E. A. 37 of 1966. The learned District Munsif pointed out that throughout in the claim petition and the subsequent suit. Sundaramurthi claimed only an undivided half share and release thereof and since he had established that right, he would be entitled to symbolical possession of his half share. if otherwise he was entitled to maintain the application in O. S. 72 of 1959. The learned District Munsif, however, thought that the application should have been filed in O. S. 255 of 1957. In that view, he dismissed the application.
4. Sundaramurthi preferred an appeal, C. M. A. No. 57 of 1966, in the District Court, Chingleput. The learned District Judge, agreeing with the learned District Munsif, observed that in the claim petition and in the claim suit, the petitioner Sundaramurthi had prayed only for release of his undivided half share and that so far as the other half share was concerned, the auction-purchaser had acquired valid the thereto and therefore Sundaramurthi could not recover possession of the entirely of the properties. In that view, he dismissed the appeal. Hence this further appeal by Sundaramurthi.
5. Sri Venkatesan, in an able and strenuous argument for the appellant, contends that the courts below have missed the point that as a matter of substantive law, the auction-purchaser, who acquired a title to only a half share of the coparcener Munuswami Gramani, was not entitled to recover possession of the entire properties and was only entitled to step into the shoes of Munuswami Gramani and work out his rights by a suit for partition. The learned counsel relies on the statement of the law in Mullah's Hindu Law. Art. 261, and on the decision of the Supreme Court in Sidheswar Mukherjee v. Bhubaneswar Prasad, : 1SCR177 . The learned counsel proceeds to urge that consequently, when the executing court delivered possession of the entirety of the suit lands to the auction-purchaser. it gave him more relief than that he was entitled to and that, following the substantive law, the appellant is entitled to recover possession of the entirety of the properties from the auction-purchaser, without prejudice to the right of the auction-purchaser to work out his rights by a separate suit for partition which he should file for the purpose.
6. The auction-purchaser has not appeared before me either in person or by counsel. In my view, the learned counsel for the appellant is right in his argument regarding the substantive law, viz., that the auction-purchaser was not entitled of recover possession of the entirety of the properties and was only entitled to work his rights by a separate suit for partition which he should have filed for that purpose. Consequently, the order of the executing court placing him in possession of the entire properties was wrong. But the further question arises whether the appellant can recover possession of the properties from the auction purchaser by means of this application, E. A. 37 of 1966, filed under Section 144, Civil, P. C. That section, so far as material says that
'Where and in so far as a decree or an order in 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 order or such part thereof as has been varied or reversed.' etc.
It seems to me that the appellant is not entitled to the relief under Section 144, Civil P. C., because he did not put forth any objection in the application which the auction purchaser must have filed in the executing court in O. S. 255 of 1957 for delivery of possession as a result of his purchase. Since the contention of the appellant was throughout that he was entitled to an undivided half share and the court auction could convey only the other undivided half share belonging to his brother, the appellant could certainly have filed such an objection petition.
It is not clear from the records available now in this court what the date of the court auction purchase was and what the date of the application of the auction-purchaser for delivery was. If the application for delivery was filed after 27-7-1963. the date on which the appellant's appeal A. S. No. 132 of 1960 was allowed by the District Court of Chingleput (Ex. B-2) the appellant could have straightway succeeded in his objection before the executing court in O. S. No. 255 of 1957 by relying on the judgment dated 27-7-1963 of the District Court in A. S. 132 of 1960. But even assuming for the sake of argument that the judgment in A. S. 132 of 1960 had not been rendered when the application for delivery was put in by the auction-purchase, or even when the auction purchaser actually took possession through court by the order of the executing court, it was open to the appellant to put forth his objection based on his claim of an undivided half share. In my opinion, since he did not do so, he lost his right to invoke the doctrine of restitution under Section 144. Civil P. C. Without any such objection from the appellant, it cannot be said that the executing court passed a wrong order in ordering delivery of the entirely of the properties to the auction purchaser. The executing court is not supposed to know that the appellant had obtained a decree of his half share in A. S. 132 of 1960, unless it was brought to its notice by the appellant. It is true that merely because the appellant did not put forth his objection to the delivery of the entirety of the properties in the execution stage, he would not lose his right to an undivided half share. But the fact that he did not put forth his objection then has a vital bearing on the question of restitution with which alone we are now concerned. When once the appellant allowed the auction purchaser to take delivery-may be wrongly in law-of the entirety of the properties, the appellant has only himself to blame for disentitling himself to the remedy of restitution, and only his right of suit would remain. We are not now concerned with the question whether in filing such a suit he would be entitled to recover the entirety of the properties, leaving the auction purchaser to raise, by way of defense, that it may be converted into a suit for partition and the property might be allotted to Munuswami Gramani.
7. On the principle mentioned above, it seems to me that the application for restitution was misconceived. The learned counsel for the appellant invites me to state that if his client were to file a suit for partition at this stage, it would be saved from the bar of limitation on the two grounds (i) that the auction purchaser is a co-owner whose possession could not be adverse to the appellant. (ii) the appellant could invoke Section 14 of the Limitation Act 1963, in that the appellant was seeking his remedy bona fide by way of restitution. The auction purchaser is not before me, and I therefore do not think it right to make any pronouncement on this question except to state that prima facie the auction purchaser was, to start with, a co-owner of the half share of a copartner and in such a case, ouster will have to be proved to displace the title of the appellant. Such ouster has to be proved in case the auction purchaser has been in possession for more than twelve years from the date of taking delivery of possession. But on the question whether there has been ouster and whether Section 14 of the Limitation Act, will apply, I do not think it right for me to express even a prima facie opinion. The appeal is accordingly dismissed, but without costs. No leave.
8. Appeal dismissed.