SADASHIV BASAPPA MADABAVI Vs. ANNAPPA SHIDLINGAPPA POOJARI

JUDGEMENT

(1.) It is necessary to state a few facts before proceeding to consider the question of law urged in this case.

(2.) The appellant as plaintiff filed Civil Suit No. 288 of 1941 in the Court of the Subordinate Judge at Jamkhandi, which was a Native State at that time; in that suit he obtained an ex parte decree; from the material on record it is not possible to find out the date on which the ex parte decree was passed; nut it is seen that some time in the year 1945, the defendant filed Miscellaneous Application No. 1 of 1945 to set aside the ex parte decree passed against him; when that application was pending the plaintiff levied execution of his decree in C. S. 288/41: therein he obtained possession of the suit property on 5-1-1946; possession of the suit house was obtained on 1-3-1946; meanwhile Misc. Application No. 1/45 was allowed on 14-7-1947 and the suit C. S. No. 288/41 was posted for trial, on 12-3-1948 Jamkhandi State merged in the Province of Bombay; Hulabali Village in which the suit property as well as the house are situate were included in the Belgaum District of Bombay Province and that village came within the jurisdiction of the Court of the Civil Judge. Jr. Division Athani; consequently C. S. No. 288/41 on the file of the Subordinate Judge Jamkhandi, stood transfered to the Court of that Civil Judge Junior Division, Athani. At this stage it may also be mentioned that when the Jamkhandi State merged in the Bombay Province, the Civil Courts existing in that State stood abolished and new Courts were established by the Province of Bombay. To come buck to C.S. No. 288/41, it was ultimately dismissed; the matter was taken up in appeal; the appeal was also dismissed on 28-11-1953. On 13-8-1954 the respondent filed an application under S. 144 C.P.C. from which this Second Appeal arises, seeking restitution of the property taken delivery of by the appellant in execution of the ex parte decree in C. S. No. 288/41. He also claimed meane profits. The Courts below have granted the prayers of the respondent. The appellant contends that the Court of the Civil Judge, Junior Division at Athani had no jurisdiction to entertain the application in question as it is not the "Court of first instance", whose decree was varied, nor is it a transferee Court within the meaning of S. 150 Cr. C.P.C.

(3.) Answers to these questions depend on the interpretation to be placed on Ss. 144 and 150 C.P.C. Section 144(1) C.P.C. reads as follows :