KUNHANU Vs. MAMMU BEARY

JUDGEMENT

(1.) I think that on principle the view taken by the courts below is wrong in law. It is also against the weight of authority although there is some authority - VII MLT. 107, AIR 1924 Mad. 200 and AIR 1957 Assam 123 - apparently in its favour. It is the admitted fact that on 16-7-1957 the respondent decree holder obtained effective delivery of the property which is the subject matter of this appeal from the hands of the appellant judgment debtor, in execution of his decree for possession although the delivery was not recorded and the application was kept pending by reason of a stay ordered by the appellate court on appeal by the judgment debtor. The subsequent dispossession complained of can only give rise to a fresh cause of action for the institution of a fresh suit for possession and cannot justify a second order for delivery on the decree holders execution application when execution had already been completed by an actual and effective delivery. IV Allahabad 184, 32 Indian Cases 44, AIR 1916 Mad. 930 and AIR 1917 Mad. 202 are a few of the cases in point out of the large number cited at the bar. (The question whether in cases where the delivery is only symbolical or has proved ineffective, a second order for delivery will lie does not arise in this case, the delivery made being admittedly actual and effective, and it is not necessary to notice the conflict of authority on this point). That delivery was effected while the appeal by the judgment debtor was pending and that subsequent dismissal of the appeal (so far as the present property is concerned) gave the decree holder an executable decree makes no difference to the position and does not enable him to execute once again a decree that has already been executed. (Neither does the circumstance that the delivery was only of a portion of the property covered by the decree of the first court, and that the decree regarding the rest of the property was set aside in appeal). Unless the appellate court has expressly taken cognizance of a subsequent event and given relief in respect of it, its decree can, after all, relate only to a cause of action in existence at the time of the institution of the suit. It is not the case that in this particular case the appellate court took note of the subsequent dispossession and granted relief in respect of it, and hence its decree can relate only to the dispossession before the suit in respect of which the decree had already been executed. With due respect I am unable to agree with the observations to the contrary in AIR 1957 Assam 123 and I might say that in that case the finding was that there was in fact no delivery so that the observations were obiter. VII MLT. 107 seems to be really a case of restitution following the reversal of an appellate decree dismissing a suit for possession which had been decreed by the first court, and, in execution of which decree, possession had been taken before the first appeal was decided. But following the dismissal of the suit by the first appellate court the defendant managed to regain possession - though not through court - before the second appeal was decided. It was therefore as if restitution had been obtained by the defendant outside court in pursuance of the judgment of the lower appellate court, and, on the Trial Courts decree being restored by the High Court in second appeal, the plaintiff became entitled to restitution. In AIR 1924 Madras 200 which merely follows VII MLT. 107 the facts are not clear and it does not take the respondent any farther than that case.