MADHAVAN Vs. BASHEER AHAMAD

JUDGEMENT

(1.) The tenant is the appellant.

(2.) In execution of the decree in O.S. 640/76, the shop room in dispute was delivered to the respondent. The delivery was effected at a time when the Kerala Buildings (Lease and Rent Control) Act had been extended to the area where the shop room was situated. That means the decree could have been executed only subject to the provisions of the said Act. The appellant therefore filed an application under S.144 C.P.C. for restitution. This application was allowed by the executing court and on appeal the Appellate Court reversed the said order. The appellant thereupon filed E.S.A. 30/79 against the judgment allowing the appeal filed by the landlord respondent. The order directing delivery of the property was under challenge in C.R.P. 2857/79. The appeal as also the revision were disposed of by a common order dated 10th November, 1980. Relevant portions therefrom read:-

(3.) The learned counsel for the appellant argues that this order virtually is an order directing the executing court to entertain the application and order restitution. That means the petition ought to have been allowed and the shop building ought to have been restored to the petitioner. Dilating on this point the counsel argues that, inasmuch as the order directing delivery of the property stands reversed, the respondent, who received delivery in consequence of the erroneous order, is obliged to make restitution to the petitioner.