Sukhari Khalifa vs Rajab Ali and Another

Courtney-Terrell, C.J.—This Letters Patent appeal arises out of a suit by one Abdul Mian, the present respondent 1, for ejectment against Sukhari Khalifa, the present appellant from a certain house. He obtained a decree and got delivery of possession. Sukhari Khalifa appealed and it was held that the person from whom Abdul Mian had bought the property had no title which could be conveyed to Abdul Mian, and the appeal was allowed. Sukhari Khalifa applied u/s 144, Civil P.C., for restitution of the property of which Abdul Mian had obtained possession under the decree of the trial Court. The decree for restitution was granted but the nazir was resisted by a third person Rajab Ali who is the present respondent 2 and is the father-in-law of Abdul Main.

Sukhari Khalifa accordingly applied for a summons against Rajab Ali under Order 21, Rule 97, Civil P.C., who showed cause and set up an independent title to the western portion of the house but said he had no objection to delivery of possession of the eastern portion. The Munsif in his judgment held that Rajab Ali had a prima facie case in his favour, but having regard to the fact that he was in possession of the western half only of the house and did not claim the eastern portion, ordered a fresh writ of possession to issue in favour of Sukhari Khalifa for the eastern portion only. Sukhari Khalifa appealed to the District Judge who held that Rajab Ali''s claim of title was unsound and that Sukhari Khalifa was entitled to possession of the western portion of the house and that Rajab Ali could establish his title if any by a regular suit.

The learned Judge of this Court to whom Rajab Ali appealed held that the proceedings and order being under Order 21, Rule 97 no appeal lay to the District Judge and that the order of the Munsif was not as contended by Sukhari Khalifa one u/s 144 of the Code. He allowed the appeal and restored the order of the Munsif. Mr. Syed Ali Khan on behalf of the appellant before us, Sukhari Khalifa, contends that if Rajab Ali is allowed to remain in possession without appeal then Sukhari Khalifa will be deprived of all remedy because under Sub-section (2) of Section 144,

no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1),

and contends that the Munsif''s order while purporting to be on an application under Order 21, Rule 97 is in effect an order refusing restitution u/s 144 and that such an order having the force of a decree is appealable.

Moreover it cannot be denied that although Sukhari Khalifa would be precluded from bringing a suit no such bar exists against a suit by Rajab Ali to enforce his rights if any. On the other hand the learned Judge refers to Order 21, Rule 99 which entitles the Munsif where the obstructor acted in good faith to dismiss the application complaining of such obstruction. But the mere fact that the application under Order 21, Rule 97 is dismissed and is unappealable does not in my opinion make the order of the Munsif the less a refusal of the restitution u/s 144 and as such it is appealable.

Otherwise an appeal against an order refusing to grant restitution against obstruction would always be barred whereas a refusal but without obstruction would be appealable and I do not think this was the intention of the Legislature. In my opinion notwithstanding that Sukhari Khalifa cannot bring a suit to enforce his right to restitution he may appeal against a refusal to give him that remedy u/s 144 against an obstruction just as he could if the proceedings had been begun by suit and the order of the District Judge was on appeal therefore made with jurisdiction. From this order no appeal lies on the facts and it must stand. The learned Judge in agreement with the District Judge on the facts expressed his regret at the conclusion at which he had arrived on the law. I would allow this appeal and direct that the respondents do pay the appellant''s costs throughout.

Kulwant Sahay, J.

I agree.