KARNAM CHAND Vs. KAMLESH KUMARI

JUDGEMENT

(1.) THIS is a second appeal arising out of proceedings under Section 144 of the code of Civil Procedure.

(2.) THE plaintiff-appellant purchase ed the house in suit from Harnarayan on 27-121961. At the time of purchase it was in occupation of Bharat Bhushan respondent no. 2, Mst. Kamlesh Kumari respondent No. 1, and a servant of Bharat Bhushan. The plaintiff filed a suit for eviction and arrears of rent against Bharat Bhushan and others. The suit was decreed by the trial Court. Smt. Kamlesh Kumari (respondent No. 1) preferred an appeal against the decision of the trial Court and also filed an application for stay of execution of the decree of the trial Court during the pendency of the appeal. The appellate court granted stay on the condition that the decretal costs and rent found jointly due against Smt. Kamlesh Kumari and bharat Bhushan shall be deposited by her and that she shall continue to deposit mesne profits at the rate of Rs. 100/- till the disposal of the appeal. The appeal was ultimately allowed. The decree of the trial Court was set aside and the case was remanded for a fresh decision. It is not disputed that the claim of the plaintiff against Smt. Kamlesh Kumari was ultimately dismissed by the trial Court and the said decision became final inasmuch as no appeal was preferred against it. It is also not disputed that Smt. Kamlesh Kumari had to pay a sum of Rs. 6779. 75 P. under the original decree of the trial Court in pursuance of the stay order. After the said decree was set aside by the appellate Court Smt. Kamlesh Kumari filed an application for restitution of the amount. The application was allowed by the trial court and an appeal preferred by the plaintiff was dismissed by the Additional district Judge. Being aggrieved thereby the plaintiff-appellant has preferred this second appeal.

(3.) THE main contention of Shri B. D. Gupta, learned counsel for the appellant is that even though the matter may strictly fall within the purview of Section 144 of the Code of Civil Procedure no order for restitution should have been passed because it is not in consonance with justice and circumstances of this case.