JOTINDRA NATH GHOSE Vs. JUGAL CHANDRA SANTRA

JUDGEMENT

(1.) In this appeal a short and interesting point of law arises for determination. The point for determination is the interpretation of the word "party" used in Section 144 of the Civil Procedure Code. The controversy is whether the word "party" means only a party to the suit or the decree or the appeal or does it also include a stranger.

(2.) The facts giving rise to this appeal may be set out before proceeding to determine the question. The plaintiff instituted Title Suit No. 110 of 1952 against the respondent as defendant. The suit was decreed in part by the learned Munsif who allowed a decree for possession and eviction of the defendant. An appeal was thereafter taken from that judgment and decree before the learned Subordinate Judge who allowed the appeal and set aside the judgment and decree of the learned Munsif and dismissed the suit on the ground that the land in suit was held by the defendant's wife as a tenant. But the defendant's wife was not a party to the suit. Pending the decision of the appeal the plaintiff executed the decree and got possession of the land in suit and also realised the cost. When the appeal was allowed and the suit dismissed the defendant filed an application under Section 144 C. P. C. for restitution of the property. This application for restitution was joined by the defendant's wife who was not a party to the suit. The learned Munsif allowed the application and held that the defendant's wife although not a party to the suit was entitled to restitution and accordingly ordered the restoration of possession of the property to her.

(3.) From this order of restoration there was an appeal by the plaintiff. The learned Subordinate Judge dismissed the appeal and confirmed the order of the learned Munsif.