SUNDARAMURTHI GRAMANI Vs. KESAVA NAICKER

JUDGEMENT

(1.) THIS appeal arises out of an application, E. A. No. 37 of 1966 in O. S. No. 72 of 1959 on the file of the District Munsif Court, Poonamallee, filed under Section 144. Civil P. C. for restitution. The facts leading up to the application are these: One kesava Naicker (respondent 1 in the application) had obtained a money decree in o. S. 255 of 1957 against Munuswami Gramani (respondent 2 in the present application) and, in execution of that decree brought to sale the items of properties covered by the present application. The present appellant sundaramurthi Gramani, who is the younger brother of Munuswami Gramani filed a claim petition. E. A. 1289 of 1958 under Order XXI, Rule 58, Civil P. C. contending that the properties were the joint family properties of himself and his brother Munuswami Gramani, that there had been no division between them, that he (Sundaramurthi) was entitled to an undivided half share and that his undivided half share should be released from attachment. This claim petition was dismissed on 4-12-1958. Thereupon, Sundaramurthi filed a suit under Order XXI, Rule 63. Civil P. C. numbered as O. S. 72 of 1959 in the same court. The defendants to the suit were Kesava Naicker and Munuswami. The suit was dismissed by the learned district Munsif on 31-3-1960. Ex. B-1 is a copy of the judgment. Sundaramurthi carried the matter in appeal. The appeal, A. S. No. 132 of 1960, was ultimately allowed on 27-7-1963 by the learned District Judge. Ex. B-2 is a copy of the judgment.

(2.) NOTWITHSTANDING the claim suit and the appeal, the execution in O. S. No. 255 of 1957 proceeded. The properties were purchased in court auction by one ramaswami Chetti and he also took delivery, through the executing Court of the entire properties without any objection being raised by Sundaramurthi. Sundaramurthi, however, filed EA. 37 of 1966 in O. S. 72 of 1959 under Sec. 144, civil P. C. claiming restitution by recovery of possession of the entire properties from Ramaswami Chetti. In this application, he impleaded Ramaswami Chetti as the third respondent, the first two respondents being Kesavan Naicker and munuswami Gramani.

(3.) THE application was resisted by Ramaswami Chetti. He contended that the applicant had sought release only of his undivided half share, that that claim alone had been recognized and that in order to recover that undivided half share he must file a separate suit for partition. This contention was, in effect, accepted by the learned District Munsif, who tried E. A. 37 of 1966. The learned District Munsif pointed out that throughout in the claim petition and the subsequent suit. Sundaramurthi claimed only an undivided half share and release thereof and since he had established that right, he would be entitled to symbolical possession of his half share. if otherwise he was entitled to maintain the application in O. S. 72 of 1959. The learned District Munsif, however, thought that the application should have been filed in O. S. 255 of 1957. In that view, he dismissed the application.