RAMAYYA ACHARYA Vs. CYRIL LESRADO

JUDGEMENT

(1.) The respondent obtained a decree for possession in SC.91 of 1966 on the file of the Court of the Munsiff, Mangalore, against the petitioner in respect of certain premises outside the Mangalore Town. In execution of the said decree, the respondent took delivery of possession of the premises in question. That decree, however, was set aside by this Court and the trial Court was directed to return the plaint for being presented to the proper Court. Thereafter the plaint was filed on the original side on the file of the Court of the Munsiff, Mangalore. The trial Court decreed the said suit but on appeal to the Court of the Civil Judge the trial Court's decree was reversed and the suit for possession was dismissed. Against the said order, the respondent preferred RSA.144 of 1975 before this Court.

(2.) In Execution Case No.485 of 1971, the petitioner applied for restitution of the property consequent on this Court setting aside the decree. That application was opposed by the respondent on the ground that he has preferred a second appeal before this Court and the same was pending. The learned Munsiff, by the order dt.31-1-1975, has stayed the execution proceedings until the disposal of the appeal. This order has been challenged in this revision petition.

(3.) It was urged before me by Shri B. V. Acharya, learned Counsel for the petitioner, that the Court below had no jurisdiction to stay the restitution when once the decree, pursuant to which possession was delivered, has been set aside by this Court. This submission of Shri B.V. Acharya learned Counsel for the petitioner, is right.