MALLO JAGANNA Vs. GRANDHI CHINA SATYA RAO

JUDGEMENT

(1.) The question that falls to be considered in the second appeal is as to whether under Section 151, C.P.C. the appellant is entitled to recover the profits which have been appropriated by the respondent under an erroneous order passed by the court below.

(2.) The appellant was the tenant in actual possession of the land. In a partition action by the son as against his father and brother, the appellant was dispossessed from the land. On an application filed under Order 21, Rule 100, C.P.C. the appellant was put in possession of the property. The present application was filed by him for recovery of the value of crops alleged to have been removed by the respondent herein. The courts below held that the proper remedy of the appellant was to institute a suit for recovery of profits and not to claim profits by way of restitution under Section 151, C.P.C. It is clear from the facts of the case that the tenant was wrongly dispossessed by an order of the court below. Lord Garson hold in Jai Barham v. Kedar Nath Marwari, 44 M.L.J. 735 at 739 , that apart from the provisions of Section 144, C.P.C.

(3.) The observations of Gairns L.C. in Rodger v. The Comptoird' Escompetede Paris, 187 I.L.R. 3 P.C. 465 at 475 , were adopted. The observations are as follows:-