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Rasu Pillai Vs. Vaithilinga Muthirian and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1931Mad588
AppellantRasu Pillai
RespondentVaithilinga Muthirian and ors.
Cases ReferredVenkata Kumara Mahipati Surya Rao Bahadur v. Subbayamma Rao Bahadur
Excerpt:
- - having regard to the facts which i have mentioned, it would be extremely unjust to deprive the successful party of the fruits, of his decree because the defeated party has run up a wall or placed some kind of an obstacle in the way of execution. 1 was wrongly initiated as a suit and the court is bound to obviate the injustice which would result from a refusal to apply the salutary 'provision of section 47 (2). no question of jurisdiction or of limitation can possibly arise because the suit was in the same court to which the application for carrying out the order for restitution should have been made and as i have pointed out the date of the suit was well within time......no order could be made with respect to it. as a consequence the court ordered possession of house property no. 1 to be restored to respondent's 1 mother but dismissed the application so far as it related to the wall or the property on which it stood. then instead of asking the court to carry out its own order, respondent 1 after his mother's death filed this suit for recovery of both items 1 and 2, claiming property no. 1 as already de-creed by the former suit and property no. 2 as a portion of the premises attached to the house by which approach to the house was secured from the street. it has now been found that property no. 2 belongs to respondent 1 and this second appeal is so far as that matter is concerned, incompetent. but it is urged that so far as property no. 1 is.....
Judgment:

Pandalai, J.

1. Defendant 2 is the appellant in this second appeal and the only point that is capable of being raised in second appeal is whether this suit was competent in respect of property No. 1, in other words, whether the plaintiff's remedy in respect of that property was not by way of execution. To understand this point the following facts are necessary to be known. In a former suit, No. 445 of 1918 brought by the present appellant against the present respondent 1 and his mother who was then alive the appellant sued for possession of this self same property, item 1 and obtained a decree. He got son of it in execution pending peal.

2. In the appeal the decree of the first Court was reversed. After the reversal the present respondent 1's mother who was a co-defendant in the suit applied for restitution by redelivery of the property. After he had got possession through Court the appellant had before the application for restitution walled up the opening of property No. 2 in the present suit which is used as a passage from the street to property No. 1 which is a house. The result of this was that no one could get access to property No. 1 except by scaling over the wall or knocking it down. On the restitution petition the present appellant pleaded that the wall which was obstructing the passage to property No. 1 house was erected on his own property which was not included in this suit and therefore no order could be made with respect to it. As a consequence the Court ordered possession of house property No. 1 to be restored to respondent's 1 mother but dismissed the application so far as it related to the wall or the property on which it stood. Then instead of asking the Court to carry out its own order, respondent 1 after his mother's death filed this suit for recovery of both items 1 and 2, claiming property No. 1 as already de-creed by the former suit and property No. 2 as a portion of the premises attached to the house by which approach to the house was secured from the street. It has now been found that property No. 2 belongs to respondent 1 and this second appeal is so far as that matter is concerned, incompetent. But it is urged that so far as property No. 1 is concerned the respondent had no right to bring this suit.

3. The lower Courts have dealt with this question on the footing that a new cause of action arose when the appellant built a wall preventing access to the house and on that ground held that the suit was competent in respect of the house also. I do not see how any cause of action arises for carrying out the order of the Court. The only new cause was not one of action but one of removing the obstruction to executing the Court's own order. What the appellant did was to place an obstruction in the way of the order being carried out. That is not a new cause of action so far as the carrying out the order itself is concerned and I think the lower Courts were not right in their view about a new cause of action so far as executing the order for restitution was concerned.

4. This however is not sufficient to dispose of the matter. I am asked to exercise the power of the Court under Section 47 (2) and in view of the circumstances to treat the suit so far as it relates to property No. 1 as a proceeding. There is no doubt that this power may be exercised by this Court and the only question is whether it should be so exercised in this case. Having regard to the facts which I have mentioned, it would be extremely unjust to deprive the successful party of the fruits, of his decree because the defeated party has run up a wall or placed some kind of an obstacle in the way of execution. The appellant has absolutely no merits. The suit was brought on 9th November 1926 and the order for delivery, Ex. Q was passed on 9th September 1924. The suit treated as a proceeding under Section 47 was in time. But reference has been made to decisions which take the view that under Section 47 (2) a proceeding can only be treated either as a petition or as a suit, not as both. There is no doubt an observation to that effect in a decision reported in Venkata Kumara Mahipati Surya Rao Bahadur v. Subbayamma Rao Bahadur [1914] 24 I.C.484 (at p. 445 of 1 M. L. W.) but after examining that decision and the facts on which it was pronounced it appears to me that that was not the ground of the decision nor was it necessary for it. In that case a decree-holder who was entitled under the decree only to mesne profits for three years applied for mesne profits for a year (fasli 1317) which was beyond the three years. In such a case, as their Lordships points out when the Court allowed the mesne profits up to fasli 1316 the latest year within the period of three years, the Court had awarded all that the decree legally provided for and anything that was prayed for beyond that period was something for which there was no decree at all and therefore was not a proceeding in execution. As their Lordships put it there was no further question relating to the execution of the decree which could be determined under Section 47. But having so decided the lower Court in that case proceeded to convert the application so far as it related to fasli 1317 into a suit. This their Lordships said was not provided by Section 47 (2). That was the ground of the decision namely that a prayer for a relief for which the decree did not pro-.vide and would not provide cannot be converted from an execution proceeding to a suit.

5. Those are not the facts here. The relief in this suit so far as 'the recovery of item 1 is concerned is fully provided for by the order for restitution and only remains to be carried out. As their Lordships say in the judgment referred to, Section 47 was intended to obviate the injustice caused to parties by a mistake in the initiation of proceedings and enables a Court to treat an application as a suit or a suit as an application. Applying those words the suit so far as it related to property No. 1 was wrongly initiated as a suit and the Court is bound to obviate the injustice which would result from a refusal to apply the salutary 'provision of Section 47 (2). No question of jurisdiction or of limitation can possibly arise because the suit was in the same Court to which the application for carrying out the order for restitution should have been made and as I have pointed out the date of the suit was well within time. The order therefore is that the decree of the lower Courts so far as item 1 is concerned is reversed and an order is made under Section 47(2) and that the order Ex. Q for delivery of possession of item 1 be carried out by the Court of first instance. The second appeal is otherwise dismissed. There will be no order as to costs in this second appeal.


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