NARAYAN LAXMAN AYARKAR Vs. VISHNU WAMAN DHAWALE

JUDGEMENT

(1.) THIS second appeal arises out of restitution proceedings. Appellants Nos. 1 and 2 filed Suit No. 67 of 1943 in the Court of the Civil Judge, Junior Division, at Pen against respondents Nos. 1 and 2 and another person. The suit was filed under Order 1, Rule 8, of the Civil Procedure Code by appellants NOS. 1 and 2 in their representative capacity. Appellants Nos. 1 and 2 claimed to be the Guraos of the Rameshwar Temple at Pen. In the suit they claimed possession of five lands alleging that the lands were granted in Inam to the Rameshwar Temple and were managed through Vahiwatdars. This suit was decreed on 13th September, 1946, and in December 1946 in execution of the decree appellants Nos. 1 and 2 obtained possession of the lands. Against the decree of the trial Court an appeal was filed by respondents Nos. 1 and 2 to the District Court and in appeal the decree of the trial Court was confirmed. In second appeal to this Court a consent decree was passed on 17th April, 1953. By that decree it was provided inter alia:

(2.) AGAINST the order passed by the trial Court an appeal was preferred to the District Court at Kolaba. In appeal, the learned District Judge held that appellants Nos. 3 and 4 having entered the land as tenants of appellants Nos. 1 and 2 during the pendency of the appeal, they were bound by the decree passed by this Court in Second Appeal from the decree in Suit No. 67 of 1943 and they were liable to deliver possession as directed by the consent decree. The learned appellate Judge accordingly passed an order that a warrant for possession in favour of respondents Nos. 1 and 2 do issue under Order 21, Rule 35 of the Civil P. C. Against that order this appeal has been filed by appellants Nos. 1 to 4

(3.) MR. V. S. Desai, who appears on behalf of the appellants, has raised two contentions in support of the appeal; (1) that restitution cannot be ordered in these proceedings against appellants Nos. 3 and 4 who are tenants of appellants Nos. 1 and 2, and (2) that an order for actual possession cannot be passed against appellants Nos. 3 and 4 in an application for restitution. Mr. Desai says that an order for restitution can be passed only against parties to the suit and not against persons who claim under a title derived from the parties to the suit, and he contends that Section 144 of the Civil P. C. , does not authorise a Court dealing with an application for restitution to pass an order against a person other than a person expressly impleaded as a party to the suit. Section 144 of the Civil P. C. , in so far as it is material, provides: