KRISHNA AWAJI GHADGE Vs. BAPU KALU GHADGE

JUDGEMENT

(1.) THIS is an application for stay of a decree and the application has been referred to me by the Registrar because a question of law on which there is no authority has been raised on behalf of the opponents.

(2.) THE facts are that one Awaji died Ieaving the respondents as his illegitimate heirs and the plaintiff as his legitimate heir. The trial Court held that Awaji was a Kshatriya and as the respondents were illegitimate they could not succeed as a legitimate heir was available, and he, therefore, decreed the suit in favour of the plaintiff. In pursuance of this decree the plaintiff-appellant obtained possession of the immovable property from the respondents who were then in possession. Upon appeal the Assistant Judge of Satara held that Awaji was a Shudra and, therefore, illegitimate children could inherit along with the legitimate children. He, therefore, allowed the appeal and dismissed the applicant's suit. It is against the dismissal of the suit by the Assistant Judge, Satara, that this appeal has been filed and Mr. Pendse, who appears for the appellant, urges in favour of the stay application that his client is in possession, great loss will be caused to him if stay is not granted and that he is prepared to give security for the due performance of such decree as may be passed in the second appeal. He says ? and it is admitted by Mr. Albal ? that normally he would have been en titled to a stay if we were dealing with a case where no principle of restitution was involved. Mr. Albal opposes the application for stay on the ground that his clients have become entitled to restitution under section 141 of the Civil Procedure Code, that they were originally in possession, they were dispossessed by the decree of the trial Court, and since that decree is now reversed, they are en titled to restitution of the property which was in their possession and which went info the possession of the appellant only as a result of an erroneous judgment.

(3.) BOTH Counsel appearing before me have intimated to me that they have been unable to find any decided case on this question of law; and the question must, therefore, be determined, unhampered by any authority, on the provisions of the Code. Section 144, sub-section (1), in so far as it is re levant, enacts:?