KARUNAKARAN NAIR Vs. MEHTA P LTD

JUDGEMENT

(1.) This C.M.A. is filed against the judgment in A.S. 70/93 on the file of the Sub Court, Kozhikode. The respondent in the C.M. A. is the appellant. C.M. A. is filed against the order of remand passed in the above appeal. The appellant as plaintiff instituted O.S. 345/78 for a permanent injunction restraining the respondent herein and two others from continuing the use and occupation of a building which belongs to the appellant. The case of the appellant was that the respondent was occupying the building as a licensee. The Trial Court dismissed the suit. Against that, the petitioner preferred an appeal. The Appellate Court found that the respondent was a licensee and granted a decree restraining from continuing the use and occupation of building. According to the appellant, the respondent and other defendants obeyed the decree and surrendered the building to the appellant and thereafter the appellant is in peaceful possession of the suit property. However, the respondent filed S. A. 1009/82 before this Court. By judgment dated 22.7.88, this court set aside the decision of the lower appellate court and remanded the case to the Lower Appellate Court for decision denovo. On remand, the appellate Court confirmed the decree of the Trial Court dismissing the suit. That decree was confirmed in appeal.

(2.) Thereafter the present respondent filed E.A. No. 451/89 in the suit under S.144 and 151 of the Code of Civil Procedure claiming restitution. The respondent alleged that after he Sub Court's original judgment dated 30.9.1982 the appellant broke open the lock of the plaint schedule premise and reduced the property into his possession taking advantage of the decree passed by the Sub Court. The appellant filed objection and contended inter alia that the respondent has no right to the relief claimed in the application and that such relief cannot be granted in an application under S.144 of the Code of Civil Procedure. The executing Court dismissed the application on 17.8.1993 finding that the application is not maintainable. The respondent filed an appeal against the said order as A.S. 70/93 before the Subordinate Judge's Court, Kozhikode. The Subordinate Judge held that the application for restitution was maintainable. But remanded the matter for considering the question whether the dispossession was under the cover of the decree or in consequence of the decree. It is against the above judgment that the present appeal has been filed.

(3.) Learned Senior counsel for the appellant Sri. Sukumaran Nair contended that in so far as the appellant did not come into possession of the building in execution of the decree, the petition for restitution was not maintainable. On the other hand, the learned counsel for the respondent Sri. Brahmanandan contended that it was only in consequence of the decree that the appellant got possession of the building, It is not necessary for the purpose of an application for restitution the delivery should have been obtained only through execution. The question for consideration is that whether the view of the court below that the application for restitution was maintainable. Before dealing with the question, I shall refer to the following observations of the Privy Council in Alexander Rodger Charles Carnie v. Comptoir D. Escompee De Paris, (1871) Law Report 3 PC 465.