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Tatanagowdra Bhimana Gowd and ors. Vs. Patel Siddalingana Gowd - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad898
AppellantTatanagowdra Bhimana Gowd and ors.
RespondentPatel Siddalingana Gowd
Cases ReferredTara Chand v. Champi A. I. R.
Excerpt:
.....to remove the obstruction caused by the counter-petitioner and to effect delivery as per sale certificate, was 'petition allowed'.but although this no doubt gave authority to overcome the petitioners' resistance, it remains true that transfer of possession of the property was effected not by force of the order, but of the decree in the mortgage suit, and of the consequent sale and delivery warrant. , exhibits the position very clearly......filed by the decree-holder to remove the obstruction,, that their five-sevenths share in the suit property was not bound by the decree. on 4th april 1918 this objection was overruled, and the petitioners' obstruction ordered to be removed. the next day, 5th april 1918, they filed a suit for a declaration of their title to five-sevenths of the property and for partition. subsequently the respondents were given delivery of the whole property under the other suit, and the petitioners were allowed to amend their plaint so as to include a prayer for possession. eventually on 13th october 1921, they were on appeal given a decree setting aside the order of the district munsif in the summary proceedings, declaring the petitioners' right to a five-sevenths share in the property and.....
Judgment:

Odgers, J.

1. The former of these is a petition to raise the order of the learned Acting District Judge of Bellary and the latter to revise the order of the District Munsif of Bellary. They both relate to the same matter and have been argued together.

2. The facts are as follows: O. S. No. 199 of 1916 was a suit on a mortgage executed to the respondent by the brother of the petitioners. The respondent obtained a decree. There was a sale in execution of the decree and the decreeholder bought the properties in execution, To this proceeding and suit the petitioners were not parties. They, the brothers of the mortgagor, obstructed the decree-holder when he came to take possession of the property alleged to have been included in the mortgage. On the petition of the mortgagee in E. A. No. 87 of 1918 the petitioners' obstruction was removed on the 4th April 1918 and he was placed in possession of all the lands and a claim order under Order 21, Rule 98, Civil P. C. was made thereon. The petitioners thereupon instituted a suit on 5th April 1918 (O. S. No. 212 of 1918) in the district munsif's Court to vacate this order in E. A. No. 87 of 1918 and for partition and delivery to them of 5/7ths share in the lands. The munsif held (9th December 1918) that the value of the suit was above his jurisdiction and returned the plaint. This was filed on full Court-fee, as O. S. No. 69 of 1918 in the District Court of Bellary and was remitted to the sub-Court for trial. On the 22nd March 1921 the petitioners' suit was dismissed. On the 13th October 1921 the petitioners' appeal was allowed by the district Court and on 3rd October 1923 the second appeal to the High Court was dismissed. In E. P. No. 17 of 1922 the petitioners filed a petition to recover 5/7ths of the property and possession was finally awarded by the district Court in 1921. Now the present petition is that mesne profits may be awarded to the petitioners for the period; about four years (1918-1922), during which they were kept out of possession by the wrong order and decrees passed against them.

3. The suit No. 212 of 1918 was of course a statutory suit under Order 21, Rule 103, to establish the right of the plaintiffs to the present possession of the property which they were obliged to bring in consequence of the order overruling their objection to the possession of the decree-holder on 4th April 1918. The question is, can these C. R. Ps. be permitted? The first, as stated, is against the order of the district judge who held that the present application for mesne profits by way of restitution does not lie as the petitioners have not asked for determination and delivery of future mesne profits in the suit itself and there is nothing to preclude them from bringing a fresh suit to recover such profits. It ;hardly contended that the district judge had any jurisdiction to allow restitution. We have been invited to hold that although the matter does not fall under Section 144, Civil P. C. yet the ambit of Section 144 has to be extended on equitable considerations to embrace an application of this sort. The first requisite of Section 144 is that the Court of first instance shall cause restitution to be made. It therefore seems that the district judge had no power to grant restitution and that as regards C. R. P. No. 1019 of 24 that petition must be dismissed.

4. With regard to the second of the petitions, the matter is one of more difficulty, though it has to be noted that, if the general principle, that the Court will not interfere by way of revision where the petitioner has another remedy, is to be followed, this petition would also have to be dismissed on this ground alone. On this point we have been referred to the case in Sree Krishna Doss v. Chandook Chand [1909] 32 Mad. 334 where Miller J, held that though the Court should not interfere where the party has another remedy, still under the circumstances of the case before him interference was the lesser evil as the suit would be undefended. I am not sure that that would be the case here or that one could simply ascertain the amount of mesne profits without an account being taken and debits and credits being gone into. What we are really asked to do is to exercise the inherent power in the Court to act fairly, following the decisions in Jai Berham v. Kedar Nath Marwari A. I. R. 1922 P. C. 269 and 'Rodger v. The Comptoir Descompte De Waris [1871] 3 P. C. 465 In the latter case Lord Cairns L. C. said that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and to make and vary order which was fairly and properly consequential upon the reversal of the original judgment.

5. In the case before the Privy Council in Jai Berham v. Kedar Nath Marwari A. I. R. 1922 P. C. 269 the Judicial Committee held that before restoring the property in consequence of a reversed decree the purchasers were entitled to be paid the excess of the purchase price over the mesne profits. Now the petitioners in their suit O. S. No. 212 of 1918 originally asked only for a declaration that the Court sale should not affect their five-sevenths share in the property. They afterwards amended the plaint by inserting a prayer for possession, but they did not insert any prayer for mesne profits. The decree that was asked for and made in their suit was therefore not merely declaratory. Shiam Sunder Lal v. Kaisar Zamani Begum [1906] 29 All. 143 is relied on by the petitioners as an authority that when a decree is reversed full restitution would follow whether under the old Section 583, Civil P. C., or the present Section 151. This has been doubted by a bench of this Court in Subbarayudu v. Seshasani [1916] 40 Mad. 299 which stated that they were not prepared to proceed to the extreme length of this decision, and a bench of three judges of this Court in a letters patent appeal, Basivi Reddi v. Ramayya [1916] 40 Mad. 733 has held that the statutory suit under Order 21, Rule 103, may include all appropriate reliefs and that the words 'to establish his right' do not mean a mere declaration. It is stated that this decision may be untenable because a a full bench in Krishtnam Soorayya v. Pathma Bee [1906] 29 Mad. 151 held that the statutory suit is not controlled by Section 42, Specific Relief Act, and that the plaintiff is not bound to ask for further relief. It may be that the full bench decision can be confined to the special matter of the Specific Relief Act, but that decision expressly overruled Kunhiamma v. Kunhunni, ( 8) which had decided that there can be no mere declaratory suit but the plaintiff must sue for the whole of his relief. The full bench approved Ambu v. Kettilamma [1891] 14 Mad. 23 which held that a subsequent suit for possession was not barred by Section 43 (Order 2, Rule 2, Civil P. C.) and there must be but one suit both to set aside the sale and to recover the property. Rajammal v. Narayanaswamy Naicker [1915] 39 Mad. 219 held that the statutory suit was not a mere suit for a declaration. If I may say so with respect to the argument that has been addressed to us, it seems to me that some of these decisions are some way away from the point at issue, namely that of restitution and restitution alone. It is at least doubtful whether the possession of the plaintiffs is referable to the claim order or whether they did not obtain possession under the decree in their suit. One thing is certain, that this petition cannot be allowed without some enlargement of Section 144, Civil P. C., by way of equitable considerations of what is fair between the parties, or the duty of the Court to make full redress to the party who has been kept out of possession by its wrong orders and decrees. Now, there is no doubt, of course, as I have said before, that a suit for mesne profits would lie quite independent of the suit for possession: Ponnammal v. Ramamurthy Ayyar [1915] 38 Mad. 829 and Doraiswami v. Subramania [1917] 41 Mad. 188 so that, where the injured party has asked for part of his relief and omitted to ask for the other part, it seems to me very doubtful whether we should interfere in revision, at least in order to help him to something which he omitted to ask for. This assumes, of course, which I take to be the case, that this Court is not prepared, as I certainly am not, to go the length of the decision in Shiam Sunder Lal v. Kaisar Zamani Begum [1906] 29 All. 143 namely, that once you succeed in a declaratory suit under Order 21, Rule 103, everything must follow as a matter of course. It is said that the district munsif has declined jurisdiction under the cases laying down the equitable principles enunciated above. He decided that the possession obtained by the petitioners cannot be referred to restitution under Section 144 and since they did not obtain their five-sevenths share under S.144 mesne profits, as a properly consequential relief, cannot be ascertained under the section. He thought that they could have claimed mesne profits in the suit and in any case could institute a fresh suit for the same. It seems to me that the munsif was right and that, as I am not prepared to grant this extended meaning to Section 144, that really concludes the matter. As pointed out in Sadu v. Ram [1892] 16 Bom. 608 the Court should lean against a multiplicity of suits or anamolous results might follow, particularly in partition suits, if a petitioner is allowed to come in after his statutory suit is over and ask for various reliefs which he had not asked for in the suit.

6. On all these grounds I am of opinion that we should refuse to interfere in revision in a case of this sort and I would dismiss C. R. Ps. Nos. 1019 of 1924 and 277 of 1925 with costs of the respondents; only one vaki1's fee, viz., in C. R. P. No. 277 of 1925.

Curgenven, J.

7. A brother of the petitioners in these O. R. Ps. mortgaged certain property to the respondents, who obtained a decree, brought the property to sale and purchased it themselves. When they went to take delivery the petitioners obstructed them and pleaded, in the application filed by the decree-holder to remove the obstruction,, that their five-sevenths share in the suit property was not bound by the decree. On 4th April 1918 this objection was overruled, and the petitioners' obstruction ordered to be removed. The next day, 5th April 1918, they filed a suit for a declaration of their title to five-sevenths of the property and for partition. Subsequently the respondents were given delivery of the whole property under the other suit, and the petitioners were allowed to amend their plaint so as to include a prayer for possession. Eventually on 13th October 1921, they were on appeal given a decree setting aside the order of the district munsif in the summary proceedings, declaring the petitioners' right to a five-sevenths share in the property and directing a partition by metes and bounds and the delivery to them of this share. This decree was executed, and possession of this share was obtained in May 1922.

8. The decrees awarded no mesne profits, neither was there any prayer made for them in the plaint even after amendment. It is the object of the petitioners now to recover them, and since this cannot be done under this decree they have to contend, that an alternative method exists of achieving their object. They seek in fact, to obtain their end by way of restitution. With this object they filed two applications, one to the district munsif, whose order overruling their objection was set aside by the decree, the other to the district judge, who passed that decree. It is clear that no such application as the latter will lie, and indeed this alternative has not been seriously pressed upon us. If any Court has jurisdiction to order restitution, it must be the Court whose order the decree set aside, namely, the district munsif's Court.

9. The order was passed under Rules 97 and 99 of Order 21, Civil P. C., and Rule 103 provides that such an order shall be conclusive, subject to the result of any suit which the third party may institute to establish the right which he claims to the present possession of the property. The first objection which the petitioners have to meet, therefore, is that the code gives them a remedy, and it is not disputed that it is a complete remedy, in respect of any erroneous order which an execution Court may pass under these rules. It is not disputed that they might have included a prayer for mesne profits in their plaint, and secured provision for recovering them in their decree at the same time as they obtained a direction for the delivery of the property. Having omitted to do this, they are met by the argument that no other means exist for attaining this object.

10. Section 141 of the code, which provides for restitution where a decree is varied or reversed, admittedly does not in terms apply to the reversal of such an order as we are dealing with. Recourse must, therefore, be had to the contention that in a case like this the Court has inherent power to repair the consequences of an erroneous order by acting upon the analogy furnished by this section. As to this, two observations, I think, have to be made. The first is that in the case of a decree the policy of the code is to lay it upon the Court of first instance, and upon that Court alone, to restore matters to the status quo ante, and to secure this, Sub-section (2), Section 144, bars any suit for restitution; while in the case of a summary order removing obstruction, the reverse is the case, the provision being not for an application to the Court which passed the order but for a suit. So far, therefore, from affording an analogical basis for a restitution order in a case like the present, the terms of the sections suggest that it is contrary to the intention of the code that the procedure which it imposes in the case of a decree should be adopted in the case of an order voidable by suit. The second observation is that where express means exist for obtaining any relief, as here by suit, it is not open to a party to claim, or for a Court to grant the same thing by virtue of any inherent power which might, but for that consideration, exist to grant it. Upon this ground alone, I think the district munsif's disclaimer of jurisdiction ought to be upheld. I would certainly be unwilling to interfere in revision with such an order.

11. If, apart from these objections, the petitioners have an arguable case, the argument runs as follows: Under their decree they secured the reversal of the district Munsif's order. They also secured certain other reliefs, but those may be regarded as unessential, since the mere setting aside of the order rendered it incumbent upon the Court which passed it to do all that it could to undo its effects, that is, to give the petitioners possession and mesne profits. Now a clear assumption underlying this line of reasoning is that possession was obtained by the respondents by force of the order itself; because if it was not so obtained, it could not be restored, and mesne profits awarded for wrongful occupation by the mere undoing of the order. The order, which was passed upon an application to remove the obstruction caused by the counter-petitioner and to effect delivery as per sale certificate, was 'petition allowed'. But although this no doubt gave authority to overcome the petitioners' resistance, it remains true that transfer of possession of the property was effected not by force of the order, but of the decree in the mortgage suit, and of the consequent sale and delivery warrant. The order, in fact, merely prevented the petitioners from resisting execution of the decree. It is true that it was a wrong order, but so too was the sale a wrong sale, and the delivery warrant based upon it wrong also. It is not therefore correct to impute to the order alone the consequence of wrongful, delivery of possession, or to claim that restitution should follow from its reversal. These considerations explain, I think, why it is necessary for one who sets up a jus tertii -to sue to establish the right which he claims to the present possession of the property, and to include in his suit every relief which the wrongful action of the Court gives rise to. If he has lost possession he must sue to recover it, and if he wants damages for loss of possession he must ask for them. He must frame his suit exactly as he would frame it in any other case of wrongful dispossession, and so to sue, in my view, is the only remedy open to him.

12. I have based these conclusions upon the terms of the code, and I do not think that there is anything' in the caselaw in conflict with them. Rodgar v. The Comptoir Descompte De Paris [1871] 3 P. C. 465 has been referred to for the principle enunciated by Lord Cairns, that it is the duty of all Courts to take care that the act of the Court does no injury to any of the suitors and what he said on that occasion was repeated with approval by their lordships in Jai Berham v. Kedar Nath Marwari A. I. R. 1922 P. C. 269 To recognize in general an inherent power to grant restitution, however, does not mean that a party may claim it in all cases where he has suffered loss, especially, where, as here, a remedy of another kind was open to him. An instance of the appropriate exercise of its inherent power by the Court is afforded by Alagappa Chettiar v. Muthukumara Chettiar [1917] 41 Mad. 316 where interest was allowed upon money wrongfully drawn out of Court. Then there are several Madras cases in which the nature of a suit under Rule 103, or the similarly worded Rule 63, Order 21, has been considered. In Ambu v. Kettilamma [1891] 14 Mad. 23 the plaintiff who had objected under what is now Rule 68, sued to have the court sale set aside, and obtained a decree. Since it then appeared that the defendant had obtained possession of the property even before the date of that suit, although the plaintiff did not know it, she sued again for possession, and it was held that the second suit was not barred by Section 43 (now Order 2, R. 2), Civil P. C. The judgment of Muthuswami Ayyar, J., exhibits the position very clearly. The first suit was based upon the order rejecting the claim petition and it resulted in the setting aside of the order and the declaration of the plaintiff's title:

Section 283 (Order 21, R. 63) gives special right to sue for a declaration of title by reason of the special attribute with which the order on the claim petition is invested, unless it is invalidated.

13. It was argued that the setting aside of the sale and the recovery of possession were remedies consequent upon the declaration that the summary order was invalid, but the learned judge's answer to that was that the sale and transfer of possession were in the nature of wrongful acts originating from the invalid order rather than of remedies which the plaintiff was bound to claim in the declaratory suit. This bears out the view that possession was not, strictly speaking, given under the order, for if it had been, it is hard to see how Order 2, Rule 2, would not apply. The decision in this case was approved by a full bench in Krishtnam Soorayya v. Pethma Bee [1906] 29 Mad. 151 which overruled Kunhiamma v. Kunhunni [1893] 16 Mad. 140 but there is nothing in the full bench judgment to need consideration here. In Basivi Reddi v. Ramayya [1916] 40 Mad. 733 a letters patent appeal, the substantial question was whether a. suit to recover the value of moveables wrongly sold in execution fell within the terms of Order 21, Rule 63 as a suit to 'establish the right which the plaintiff claims to the property in dispute'. Occasion was taken to consider the decision of the Judicial Committee in Phul Kumari v. Ghanshyam Misra [1908] 35 Cal. 202 where it was said that a suit of this class was in the nature of an appeal from the order of the executing Court disallowing the claim. That must not be taken to mean, the learned judge thought, that where other consequential relief is called for by the circumstances the Court should restrict itself to the grant of a declaration. The decision is only of help here as showing that whatever the reliefs claimed, they should be included in the statutory suit. The same remark applies to a Bombay case, Sadu Bir Raghu v. Ram Bir Govind [1892] 16 Bom. 608 No question of any alternative remedy by way of restitution was raised in any of these cases. In Shiam Sundar Lal v. Kaisar Zamani Begum [1906] 29 All. 143 an attachment of certain property was successfully resisted and the decree-holder sued and got a declaration that it belonged to his judgment-debtor. This judgment was reversed on appeal, but meanwhile the property had been sold. An application by the rightful owner for restitution was allowed, without deciding whether the case fell under Section 583 (now Section 144.), Civil P. C., or within the inherent power of the Court. There was of course no question that the action of the Court in restoring possession to the owner was right in substance, and the bench which heard the appeal against that order considered that it would be

absurd to contend that the respondent ought to bring a fresh suit for possession of the property which she seeks to be restored, which would be a suit completely parallel to that which has already been brought by the decree-holder.

14. I am unable to discover with certainty whether the restitution order was passed in the execution proceedings in the first suit, or under the appellate decree in the second suit. If the latter, the case affords no parallel to the circumstances now under reference. If the former, it would furnish some authority for the view that a mere declaration in the subsequent suit suffices to excite the restitutional powers of the Court of first instance. The correctness of this decision has, however, been doubted in Subbarayudu v. Veerram Setti Seshasani [1916] 40 Mad. 299 on the ground that the subsequent decree did not grant an injunction against the decree-holder .in the first suit to refrain from selling the attached property in execution or from taking possession of it as purchaser. The latter case is authority for the view that Section 144, Civil P. C., applies not only where a decree is reversed on appeal, but also where it is reversed by separate proceedings; and in Tara Chand v. Champi A. I. R. 1924 All. 718 it was held that, even if S.144 did not apply, the Court had inherent power to order restitution. In the particular circumstances of that case the Court declined to exercise this power. No doubt the analogy afforded by these cases lends some support to the view that a declaration that a decree--and perhaps having regard to the wider scope of inherent powers an order--is void, is sufficient to justify the Court which passed the decree or order in effecting restitution under it. But it is unnecessary here to decide this general proposition because I do not think that it has application where the code makes clear provision for an alternative remedy.

15. It may further be noted that any remedy by restitution which it might be open to the appellants to claim is in actual conflict with the terms of their suit. The remedy should be restoration of the whole property, with mesne profits upon the whole. What they in fact sued for was partition and delivery of their five-sevenths share. Thus by the restitution now asked for they would obtain more than their decree actually awards. What they ask for in restitution, in fact, is incompatible with the terms of their decree.

16. For these reasons I agree that the Civ, R. Ps. should be dismissed, with the order as to costs proposed by my learned brother.


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