SHANKER LAL JAKODIA Vs. RAM KISHAN BALDEO PRASAD

JUDGEMENT

(1.) THIS is an Execution Second Appeal against the order of the Civil and Sessions Judge, Kanpur dated 23-8- 1968 affirming the order of the City Munsif Kanpur dismissing an application under Section 144, Civil Procedure Code. Sri Shanker Lal Jakodia, the appellant was a tenant of premises No. 77/14 Kulee Bazar, Kanpur, M/s. Ram Kishan Baldeo Prasad the respondent was the landlord. A suit for the appellant's eviction was filed which was decreed by the trial court but was dismissed by the lower appellate Court. A second appeal in the case also failed. The result was that the appellant under the decree of the lower appellate court was entitled to regain possession of the premises in dispute as a tenant. It appears that during the proceedings in the court below Sri Lalloo Prasad the second respondent was inducted by M/s. Ram Kishan Baldeo Prasad the landlord as a tenant. The second appeal in the case having failed, Shanker Lal Jakodio, the appellant in this appeal, filed an application for restitution of possession of the premises. By the application it was prayed that the appellant be restored to possession and Lalloo Prasad the second respondent inducted as a tenant be ejected therefrom. The application was contested by the landlord as also by the second respondent the inducted tenant on the ground that the second respondent was no party to the earlier decree and hence he was not bound to vacate the premises, he having occupied the same in his own right as a tenant. This objection found favour with the trial court. It rejected the application under Section 144, C. P. C. on the ground that the second respondent was not bound by the decree and was not liable to restore possession to the appellant. The appeal against that order also failed and the lower appellate court took the same view and refused restitution on the ground that the second respondent occupied the premises as a tenant and was in possession in his own right on the basis of a fresh lease executed in his favour. It was held by the court below that he was not a party to the decree passed in the earlier suit and was as such not liable to be dispossessed in execution thereof.

(2.) IT was contended on behalf of the appellant that the second respondent was only a representative of the first respondent, the landlord, and the transfer having been made during the pendency of the appeal, it was hit by the principle of lis pendens. The appellant was accordingly entitled to restoration of possession by his ejectment.

(3.) LEARNED Counsel for the respondent urged that the application was under Section 151, C. P. C. and not under Section 144, C. P. C. It is not so. The appellant by his application dated 20th of December, 1967 prayed for restitution of possession under Section 144, C. P. C. This was followed by another application dated 5-10-1968. It again prayed for relief under Section 144, C. P. C. It appears that in an application filed by counsel for the appellant on December 6, 1967, a mention was made of Section 151, C. P. C. On the basis of this application learned counsel for the respondent urged that the proceedings were under Section 151, Civil Procedure Code. The submission is fallacious. The proceedings were clearly initiated under Section 144, C. P. C. and Section 151, C. P. C. was mentioned in the application dated 6th December, 1967 by way of abundant caution with a view to avoiding any objection, as the second respondent was not a party in the earlier decree. The appellant was entitled to claim restitution against the respondents under Section 144, Civil Procedure Code.