M. Rafiuddin and Others vs Gaddam Narayana and Others

Munikanniah, J.—The petitioner are plaintiffs In O.S. No. 16 of 1959 on the file of the Munsif-Magistrate of Ibrahimpatnars. The suit filed by them for possession of lands was decreed by the Munsif Court. Thereafter they obtained possession of the suit lands in execution of the decree. The respondent who claimed to be the pattadars and owners of the suit lands, also set up the bar of limitation filed A. S. No. 43 of 1960. The Chief Judge, City Civil Court, who heard the appeal reversed the decree of the trial Court and dismissed the suit. Thereupon the plaintiffs filed the second appeal and this application to suspend the operation of the decree of the lower Court in A. S. No. 43 of 1960.

Ordinarily, the salutary principle of keeping the party in possession who has preferred a Second Appeal and safeguarding the interests of the respondent in the appeal during the pendency of the Second Appeal would be thought of as the just and feasible method by which a satisfactory arrangement to maintain the status quo could be arrived at. Relying upon such considerations which weigh ordinarily with Courts, it was urged on behalf of the petitioners that even in the present case, the same course could be adopted. But I felt that cases where the appellant had got into possession of the disputed properties only in pursuance of the erroneous decree of the trial Court should be taken to be on a different footing, and considerations which weigh in such cases should also be different from those pertaining to cases falling under the other classifications. First of all, in cases such as the instant one, no justification can be found for continuing the appellant to be in possession of the properties as he was not in possession of the disputed properties at the time when the suit was instituted but happened to take possession of those properties only by virtue of the erroneous decree of the trial Court, though that decree has been subsequently set aside by the appellate Court.

Therefore, considerations based on any equity to continue the possession of the appellant in the Second Appeal cannot come to the rescue of the petitioners herein. Secondly, if the promptness with which the execution of the trial Court''s decree has been executed is responsible for the change brought about in the possession of the disputed properties, the perpetuation of that possession in the hands of the appellants in the Second Appeal any longer can be neither just nor be justifiable even on grounds of expediency. Thirdly, if at all equity would only favour the giving of possession to the respondents herein, as they had been admittedly in possession of the suit properties at the time when the suit was instituted. Looked at this way, I feel certain that cases where orders of stay, which are calculated to stand in the way of restoring properties by way of restitution, should be put on a different pedestal and not placed on a par with mere stay of proceedings which disturbs present possession.

Mr. Vasanta Rao for the petitioners, however, urged that inasmuch as the case law is not wanting to point out that restitution proceedings u/s 144 C.P.C. are also classed and dealt with as execution proceedings, any differentiation of the nature suggested above is not called for. In support of this, the learned Counsel placed reliance on Somasundaram v. Chokkalingam, ILR 40 Mad 780: (AIR 1917 Mad 185) where a Division Bench were considering the application of the principle of res judicata to execution proceedings and the application of that doctrine to restitution proceedings. For that limited purpose, that Division Bench was indeed agreed that restitution proceedings u/s 144 C.P.C. should be treated as execution proceedings. But, in my view, that decision cannot be considered as an authority laying down that in matters of stay there is no differentiation between retention of possession by an appellant who had been in long possession even before suit and that of an appellant who got into possession only in pursuance of the rights conferred by the erroneous decree which has been thereafter superseded.

Mr. Chandrasekhara Reddy for the respondents relied upon the decision in AIR 1929 138 (Nagpur) to point out that orders under Rule 5 of Order 41 C.P.C. are not contemplated to be passed so as to present restitution, as the language of that Rule does not seem to justify the staying of restitution proceedings merely because an appeal has been filed against the decree which varied the decree of the first court. No doubt in this decision there is expression of the view that restitution proceedings are not proceedings under the decree or at any rate not of the kind contemplated under Order 41 Rule 5 C.P.C. But it is not necessary for me to have to pursue this line of reasoning adopted in that decision in regard to this particular except, to say that cases where restitution could be had are indeed distinguishable as outside the execution proceedings falling under order 41 Rule 5 for purpose of stay applications. As to the effect of the fight of restitution to which a party becomes entitled on the reversal of a decree of the trial Court, Mahajan, J., of the Supreme Court observed in Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das, thus:-

An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case.

In the case before the Supreme Court the retention of the money got by execution of the earlier decree has been held to be improper. The Supreme Court remarked that the decree-holder therein derived no advantage to which he was not entitled and the judgment debtor has lost nothing. Therefore, the settled view is that it is considerations of real justice that should weigh with Courts for granting stay and not notions of any balance of convenience such as disturbance of possession which may be relevant in the other set of cases. On this topic, the observations of Tendolkar, J. in Krishna Awaji Ghadge Vs. Bapu Kalu Ghadge and Others, re instructive. The facts of the case before that learned Judge could be said to be on all fours with the Instant one. After quoting the observation of the Supreme Court in Lal Bhagwant Singh Vs. Rai Sahib Lala Sri Kishen Das, and referring to the language of section 144 C. P. C., the learned Judge has-I should think correctly - stated the proposition by stressing the point that since the Court of first instance is bound to grant restitution to the party in whose favour the judgment of the appellate Court is on the ground that he was originally dispossessed and there is no discretion for that Court in that matter, held that there can be no right for the appellant in the Second Appeal to deprive the party who has the judgment of the Court of appeal in his favour of his right of restitution.

The learned Judge concluded that "there is obviously a difference between case where a decree for possession is passed whether by the trial Court or by the Court of appeal, and a stay is applied for either before the Court of appeal or before the Court of second appeal as the case may be, and a case where the property involved was in the possession of another by reason of a judgment and decree which Judgment or decree was reversed in appeal, and the stay is asked for in the second appeal." The learned Judge has gone so far as to posit that in the former class of cases the discretion of the Court to grant stay will be exercised in accordance with the provisions of Order 41 Rule 5, and that in the latter class the effect of Court''s granting a stay would be to deprive the party who succeeded before the Court of first appeal of a right of restitution which is conferred upon him in absolute terms by section 144. Though I am unable to endorse wholly that the power to grant a stay is affected by want of jurisdiction in the latter set of exceptional cases, there can be no stay of restitution on account of the pendency of a Second Appeal in cases such as the instant one.

For the above reasons, this petition is dismissed.

It is represented that the petitioners have raised crops after they came into possession of the disputed properties and that facilities should be afforded for cutting those standing crops. I should think that it is a legitimate request. Therefore, the petitioners will have the right of ingress and egress into and out of the suit lands for the purpose of cutting the crops and harvesting them and this right cannot in any manner stand in the way of the respondents to take such possession of the disputed properties as it is capable of and for the respondents to remain in possession of them pending the result of the Second Appeal.