KAMALABAI NARAYAN NAIK Vs. RUKMANIBAI KRISHNAJI NAIK

JUDGEMENT

(1.) Opponent No. 1 in Misc. Case No. 48 of 1963 on the file of the Munsiff. Chikodi, is the appellant in this second appeal. The above appeal arises out of application filed by Rukmini Bai (Respondent 1 in this appeal) for restoration of possession of a house situated at Nippani.

(2.) The facts of the case are briefly these: One Narayana who was the husband of Opponent No. 1 (appellant herein) instituted a suit in Suit No. 138 of 1947 on the file of the Civil Judge, Jr. Dn. Chikodi, for recovery of possession of the house referred to above against a tenant. The said suit was decreed and he filed Darkhast application No. 177 of 1949 to recover possession of the property from the tenant. During the pendency of the said Execution application, applicant-Rukmini Bai instituted Reg. Suit No. 189 of 1951 on the file of the same court for an injunction restraining Narayan from enforcing the decree passed in Suit No. 138/47 on the ground that she was the owner of the house and therefore entitled to possession of the same. The suit filed by Rukmini Bai was dismissed in the year 1953. After the dismissal of the said suit. Narayan obtained possession of the house in execution of the decree passed in Suit No. 138/47 on 26-7-1955. Subsequent to that date the appeal filed by Bukmini Bai in C. A. 59 of 1953 on the file of the District Court, Belgaum. against the decree passed in Suit No. 189 of 1951 came to be allowed on 29-9-1962. The appellate court decreed the suit of Rukmini Bai for injunction. There was however no decree for possession. It may be mentioned here that during the course of the appeal Narayan died leaving behind him Kamala Bai, Opponent 1 as his legal representative and she was impleaded as the respondent in place of Narayan In the appeal filed bv Rukmini Bai. After that appeal was allowed, the applicant Rukmini Bai filed the application under Section 144, Civil P. C. out of which this appeal arises for restoration of the possession of the house. Respondent 2 is a tenant residing in the house. The Munsiff granted the application. The appeal filed by Opponent 1 against the order of the Munsiff was dismissed by the Civil Judge. Hence this appeal.

(3.) Sri G. D. Shirgurkar, learned counsel for opponent 1 (appellant herein) urged that the courts below had no juris-dictipn to pass an order in favour of the applicant under Section 144. Civil P. C. His contention was that it is onlv when a certain benefit had been derived by a party under an erroneous decree or order which was later on set aside by a superior court, an application under Section 144, Civil P. C. would He for restoration of the said benefit to the rightful party, According to him, in the instant case, Naravan did not get possession of the property under the decree passed jn Suit No. 189/51 but under a decree passed in Suit No. 138/47. No benefit actually was derived by Naravan under the decree passed in Suit No. 189/51 which alone was later on reversed by the appellate court. In support of his contention, he telied upon a decision of the Supreme Court in Lal Bhagawant Singh v. Sri Kishen Dass, AIR1953 SC 136 , [1953 ]4 SCR559 in which doctrine of restitution was explained as hereunder: