Sundaramurthi Gramani vs Kesava Naicker and Others

K.S. Venkataraman, J.—This appeal arises out of an application, E.A. No. 37 of 1966 in O.S. No. 72 of 1959 on the file of the District

Munsif''s Court, Poonamallee, filed u/s 144 of the CPC for restitution. The facts leading up to the application are these : - One Kesava Naicker

(respondent 1 in the application) had obtained a money decree in O.S. No. 255 of 1957 against Munusami Gramani (respondent 2 in the present

application) and, in execution of that decree, brought to sale the items of properties covered by the present application. The present appellant

Sundaramurthi Gramani, who is the younger brother of Munusami Gramani, filed a claim petition E.A. No. 1289 of 1958 under Order 21, Rule 58

of the Code of Civil Procedure, contending that the properties were the joint family properties of himself and his brother Munusami Gramanij that

there had been no division between them, that he (Sundaramurthi) was entitled to an undivided half share and that his undivided half share should

be released from attachment. This claim petition was dismissed on 4th December, 1958. Thereupon, Sundaramurthi filed a suit under Order 21,

Rule 63, Code of Civil Procedure, numbered as O.S. No. 72 of 1959 in the same Court. The defendants to the suit were Kesava Naicker and

Munusami. The suit was dismissed by the learned District Munsif on 31st March, 1960. Exhibit B-1 is a copy of the judgment. Sundaramurthi

carried the matter in appeal. The appeal, A.S. No. 132 of 1960, Was ultimately allowed on 27th July, 1963 by the learned District Judge. Exhibit

B-2 is a copy of the judgment.

Notwithstanding the claim suit and, the appeal, the execution in O.S. No. 255 of 1957 proceeded. The properties were purchased in Court

auction by one Ramaswami Ghetti and he also took delivery, through the executing Court, of the entire properties without any objection being

raised by Sundaramurthi. Sundaramurthi, however, filed Exhibit A., E.A. No. 37 of 1966 in O.S. No. 72 of 1959 u/s 144 of the Code of Civil

Procedure, claiming restitution by recovery of possession of the entire properties from Ramaswami Chetti. In this application, he impleaded

Ramasami Chetti as the 3rd respondent, the first two respondents being Kesava Naicker and Munusami Gramani.

The application was resisted by Ramasami Chetti. He contended that the applicant had sought release only of his undivided half share that that

claim, alone had been recognised and that in order to recover that undivided half share he must file a separate suit for partition. This contention

was, in effect, accepted by the learned District Munsif who trited E.A. No. 37 of 1966. The learned District Munsif pointed out that throughout in

the claim petition and the subsequent suit, Sundaramurthi claimed only an undivided half share and release thereof and since he had established that

right, he would be entitled to symbolical possession of his half share and release thereof and since he had. established that right, ho would be

entitled to symbolical possession of his half share, if otherwise he was entitled to maintain the application in O.S. No. 72 of 1959 The learned

District Munsif, however, thought that the application should have been filed in O.S. No. 255 of 1957. In that view, he dismissed the application.

Sundaramurthi preferred an appeal. C.M.A. No. 57 of 1966, in the District Court, Chingleput. The learned District Judge, agreeing with the

learned District Munsif, observed that in the claim petition and in the claim suit, the petitioner Sundaramurthi had prayed only for release of his

undivided half share and that so far as the other half share was concerned, the auction-purchaser had acquired valid title thereto and therefore

Sundaramurthi could not recover possession of the entirety of the properties. In that view, he dismissed the appeal. Hence this further appeal by

Sundaramurthi.

Sri Vedantachari in an able and strenuous argument for the appellant, contends that the Courts below have missed the point that as a matter of

substantive law, the auction purchaser, who acquired title toonlya half share of the co-parcener Munusami Gramani, was not entitled to recover

possession of the entire properties and was only entitled to step into the shoes of Munusami Graroani and work out his rights by a suit for partition.

The learned Counsel relies on the statement of the law in Mulla''s Hindu Law, Article 261, and on the decision of the Supreme Court in

Sidherhwar Mukherjee v. Bhubneshwar Prasad 1953 S.C.J. 700 ; (1953) 2 M.L.J. 789.

The learned Counsel proceeds to urge that consequently, when the executing Court delivered possession of the entirety of the suit lands to the

auction-purchaser, it gave him more relief than what he was entitled to and that, following the substantive law, the appellant is entitled to recover

possession of the entirety of the proper ties from the auction-purchaser, without prejudice to the right of the auction-purchaser to work out his

rights by a separate suit for partition which he should file the purpose.

The auction-purchaser has not appeared before me either in person or by counsel. In my view, the learned Counsel for the appellant is right in

his argument regarding the substantive law, viz., that the auction-purchaser was not entitled to recover possession of the entirety of the properties

and was only entitled to work out his rights by a separate suit for partition which he should have filed for that purpose. Consequently, the order of

the executing Court placing him in possession of the entire properties was wrong. But the further question arises whether the appellant can recover

possession of the properties from the auction-purchaser by means of this application. A. No. 37 of 1966, filed u/s 144, Civil Procedure Code.

That Section, so far as material, says that ""where and in so far as a decree or an order is varied or reversed, the Court of first instance shall, on the

application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made, as will, so far as may be, place

the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied or reversed,"" etc.

It seems to me that the appellant is not entitled to the relief u/s 144, Civil Procedure Code, because he did not put forth any objection in the

application which the auction-purchaser must have filed in the executing Court in O.S. No. 255 of 1957 for delivery of possession as a result of his

purchase. Since the contention of the appellant was throughout that he was entitled to an undivided half share and the Court-auction could convey

only the other undivided half share belonging to his brother, the appellant could certainly have filed such an objection petition. It is not clear from

the records available now in this Court what the date of the Court-auction purchase was and what the date of the application of the auction-

purchaser for delivery was. If the application for delivery was filed after 27th July, 1963, the date on which ""the appellant''s appeal A.S. No. 132

of 1960 was allowed by the District Court of Chingleput (Exhibit B-2), the appellant could have straightway succeeded in his objection before the

executing Court in O.S. No. 255 of 1957 by relying on the judgment dated 27th July, 1963 of the District Court in A.S. No. 132 of 1960. But

even assuming for the sake of argument that the judgment in A.S. No. 132 of 1960 had not been rendered when the application for delivery was

put in by the auction-purchaser, or even when the auction-purchaser actually took possession through Court by the order of the executing Court, it

was open to the appellant to put forth his objection based on his claim of an undivided half share. In my opinion, since he did not do so, he lost his

right to invoke the doctrine of restitution u/s 144, Civil Procedure Code. Without any such objection from the appellant, it cannot be said that the

executing Court passed a wrong order in ordering delivery of the entirety of the properties to the auction-purchaser. The executing Court is not

supposed to know that the appellant had obtained a decree of his half share in A.S. No. 132 of 1960, unless it was brought to its notice by the

appellant.

It is true that merely because the appellant did not put forth his objection to the delivery of the entirety of the properties in the execution stage, he

would not lose his right to an undivided half share. But the fact he did not put forth his objection then has a vital Dearing on the question of

restitution with which alone we are now concerned. When once the appellant allowed the auction-purchaser to take delivery may, be wrongly, in

law of the entirety of the properties, the appellant has only himself to blame for disentitling himself to the remedy of restitution, and only his right of

suit would, remain. We are not now concerned with the question whether, in filing such a suit he would be entitled to recover the entirety of the

properties, leaving the auction-purchaser to raise, by way of defence, that it may be converted into a suit for partition and the property might be

allotted to Munusami Gramani.

On the principle mentioned, above, It seems to me that the application for restitution was misconceived. The learned Counsel for the appellant

invites me to state that if his client were to file a suit for partition at this stage, it would be saved from the bar of limitation of the two grounds (i) that

the auction purchaser is a co-owner whose possession could not be adverse to the appellant, (ii) the appellant could invoke Section 14 of the

Limitation Act of 1963, in that the appellant was seeking his remedy bona fide by way of restitution. The auction-purchaser is not before me, and I

therefore do not think it right to make any pronouncement on this question except to state that prima facie the auction-purchaser was, to start with

a co-owner of the half share of a co-parcener and in such a case, ouster will have to be proved to displace the title of the appellant. Such an ouster

has to be proved in case the auction-purchaser has been in possession for more than 12 years from the date of taking delivery of possession. But

on the question whether there has been ouster and whether Section 14 of the Limitation Act will apply, I do not think it right for me to express

even a prima facie opinion. The appeal is accordingly dismissed, but without costs. No leave.