NAME RAMALINGAM Vs. PONDURU BATCHAMMA

JUDGEMENT

(1.) The 3rd judgment-debtor in O.S. No. 221 of 1946 was the petitioner before the District Munsif, Guntur. He filed an application under sections 47 and 151, Civil Procedure Code, to cancel the order of delivery passed under section 144, Civil Procedure Code. The trial Court dismissed the application and it was confirmed on appeal. I have no doubt that the order passed by the Court's below is correct inasmuch as the 3rd judgment-debtor got into possession under an order of stay obtained by him in the High Court and as the stay was vacated as the result of the dismissal of the second appeal, the respondent was given back possession under section 144, Civil Procedure Code. But the ground on which both the Courts below rested their judgment is in my opinion erroneous.

(2.) The Courts below misconstrued the decree in O.S. No. 221 of 1946, District Munsif's Court, Guntur. The respondent herein filed a suit for a declaration of her title and for confirmation of possession. She did not seek to recover possession in the alternative. On the other hand, she sought for a permanent injunction restraining the defendants from interfering with her possession. The allegation was that she was in actual possession and enjoyment of the property as on the date of the suit. So, the interpretation placed by the Courts below that the decree confirming her possession must be construed as one for recovery of possession and that she obtained delivery under Order 21, rule 35, Civil Procedure Code, is in my opinion, absolutely untenable.

(3.) The decisions relied on by the Courts below for the above interpretation of the decree are Ram Sekhar v. Sheonandan, A.I.R. 1923 Pat. 137. and Dwarka Prosad v. Krishna Chandra, A.I.R. 1939 Pat. 254. The observations of Mullick, J., in Ram Sekar v. Sheonandan, at page 138, are as follows