Rasu Pillai vs Vaithilinga Muthirian and Others

Pandalai, J.—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.

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.

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.

This however is not sufficient to dispose of the matter. I am asked to exercise the power of the Court u/s 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 u/s 47 was in time. But reference has been made to decisions which

take the view that u/s 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 u/s 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.

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 u/s 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.