AYISUMMA Vs. KUNHAMMAYAN

JUDGEMENT

(1.) This appeal is by the defendants in a suit to recover back possession of property and filed in the following circumstances.

(2.) The plaintiff had a Kudi Jenmom interest in the property concerned. He demised the same under Ext. A-1 kanom in l927 in favour of Noorayan who was the husband of the 1st defendant and took a lease-back under Ext. A-2. For arrears of rent due under the lease-back Noorayan obtained decree in O. S. 313 of 1934 with provision also to enforce the statutory charge over the tenancy right of the plaintiff in the property and in execution brought the tenancy right to sole and purchased it himself and in due course took delivery of the property on 14-3-1938. On the Madras Agriculturists' Belief Act, 1938 coming into force, the plaintiff applied for and obtained orders dated 13-7-1938 setting aside the execution sale aforesaid under Section 23 of that Act. He filed this suit subsequently on 24-121949 for recovery of possession of his tenancy right in the property with mesne Profits on the ground that Noorayan or his donee the 1st defendant was not entitled to be in possession after the execution sale had been set aside. The 2nd defendant daughter and the 3rd defendant son-in-law of the 1st defendant were impleaded as persons who had , obtained certain derivative interest in the property from the first defendant. The suit was contested by all the defendants mainly on the footing of bar under Ss, 47 and 144 of the Civil P. C. Any relief which enured to the plaintiff in. consequence of the reversal of the sale under Section 23, it was submitted, should be sought only by means of a petition filed within three years of the date of the reversal and not by a separate suit on title, as here. The Courts below have concurrently overruled the objection raised by the defendants and decreed the suit. Hence this special appeal.

(3.) Learned counsel for the special appellant does not seriously seek to support before me the contention raised in the Courts below on the basis of Section 144. C.P.C. Even otherwise there is no substance in such a ground. For there is no question of any decree being varied or reversed by any Court within the meaning of Section 144, C.P.C., when an execution sale is set aside by reason of relief given to an agriculturist under Section 23 of the Madras Agriculturists' Belief Act. Section 144 defines the procedure in one case only requiring restitution, viz., where the decree is varied or reversed on appeal or under revision or even In a separate suit. But there may be other cases where the injury done has to be repaired consequent on the variation or reversal by other means. In such cases the Court has inherent jurisdiction to proceed under Section 151, C.P.C., and the bar of suit under Section 144 (2) would not then arise See C. Mukkayi v. P. Pathavumma, (S) AIR 1955 Mad 173 (A),