Vedanayagy vs Porkilai

Srinivasan, J.—This appeal has to be disposed of on a very short ground. This appeal arises out of execution proceedings.

The respondent obtained a decree in O.S.F. No. 5 of 1968 of the file of the Principal District Munsif, Pondicherry on 6.11.1976. The decree is one for declaration of the respondent''s title to the property. The respondent filed execution proceedings and took possession of the property on 13.1.1981. The appellant filed a petition under Order 21, Rules 99 and 101, C.P.C., for ordering redelivery of the property. The appellant''s case is that the property belongs to her and she is not bound by the decree as she is not a party thereto. The appellant raised a contention that the decree is one for mere declaration and it cannot be executed for recovery of possession.

The executing court accepted the contention of the appellant and allowed the application filed by the appellant. On appeal the II Additional District Judge, Pondicherry held that the decree, though one for. declaration, was executable as such and possession could be delivered thereunder as per the French Law which, according to him, was applicable to the proceedings. The appellate Judge also gave findings that the appellant herein had not proved her title to the property and that she was a party to the suit, when it was originally instituted in the French court.

Aggrieved by the appellate order the appellant has preferred this C.M.S.A. After hearing counsel on both sides I am of the view that it is wholly unnecessary to consider the question whether the appellant was a party to the suit O.S.F. No. 5 of 1968 and whether the appellant has proved her title to the property or not. It should be mentioned that the cause title found in the judgment and decree in O.S.F. No. 5 of 1968 do not contain the name of the appellant. It mentions Krishnan as the fourth defendant. It is stated that Krishnan is the father of the appellant. Similarly the judgment in the appeal against the decree in the suit viz., A.S. No. 212 of 1976 on the file of the II Additional District Judge, Pondicherry dated 30.6.1980 does not also show the appellant as one of the parties thereto.

I propose to dispose of this appeal on the short ground that the decree being one for declaration cannot be executed for recovery of possession. Learned Counsel for the respondent submits that under the French Law a decree for mere declaration can be executed and possession can be obtained. According to him, the French Law would apply to the present case. I do not accept this contention for the following reason : In the judgment in O.S.F. No. 5 of 1968 the trial court specifically directed the plaintiff to file a separate suit for recovery of possession. In the penultimate paragraphs of the judgment of the following passage is found:

Further even to order delivery of possession of the property under the enjoyment of D-l that there is no relief as such and a separate suit for possession would only lie against him. Moreover, if the plaintiff is of opinion that the other defendants are in possession of the suit property claimed by her, she is at liberty to file a suit and recover possession.

If the said passage had not been in the judgment, it might have been open to the respondent to contend that the French Law would apply to the case and he is entitled to recover possession under the same decree. But, the judgment has clearly directed the respondent to file a separate suit for recovery of possession. That direction was not challenged by the respondent when the matter was taken up to the appellate court at the instance of the first defendant in the suit. There was no memorandum of cross-objections or cross-appeal. The decree of the trial court was confirmed as such. Hence it is not open to the respondent to get over that direction at the stage of execution by contending that the French Law will apply to the proceedings.

Hence it is clear that the decree for declaration could not have been executed by the respondent and she cannot recover possession from the appellant in the eviction proceedings. The order directing delivery of possession and delivery effected pursuant thereto are invalid and they deserve to be set aside.

Consequently, the order of the executing court in E.A. No. 82 of 1981 allowing the said petition and directing redelivery as claimed by the appellant herein is restored. The order of the appellate court in A.S. No. 2 of 1985 dated 24.4.1986 is set aside. The civil miscellaneous second appeal is allowed. The parties will bear their respective costs.