ROSTAM KHAN Vs. COMMISSIONER OF ENDOWMENTS

JUDGEMENT

(1.) The petitioner in this writ application has prayed for quashing the proceeding Under Section 68 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act') started against him and also the revisions! order of the Commissioner of Endowments confirming the order of the Assistant Commissioner of Endowments in the matter of restitution of the properties of which the petitioner was dispossessed in the aforesaid proceeding.

(2.) THE present opp. party No. 3 as trustee and Executive Officer of the deity Sri Laxmibarahnath Jew at Demal within the jurisdiction of Munsif, Kendrapara - in the district of Cuttack filed' an application Under Section 68 of the Act, registered as O. A. No. 11 of 1%8. In the said proceeding the present petitioner was set ex parte and on the basis of the ex parte evidence, an ex parte order putting the opp. party No. 3 in charge was passed by the Assistant Commissioner of Endowments. Pursuant to the said order, a writ was issued to the Inspector of Endowments which contained , the' direction to obtain possession from the present petitioner and deliver the same to the trustee -cum Executive Officer of the Institution. The present petitioner thereafter filed an application for setting aside the ex parte order along with a petition -to stay execution of the writ. But as it appears the writ of delivery of possession issued in the said proceeding got executed before an order of stay was passed. The said application of the petitioner for setting aside the ex parte dscree in the proceeding Under Section' 68 of the Act was ultimately allowed by order dated 8 -6 -1989 on payment of certain amount of cost which was paid within the time granted for the purpose. Consequently, the proceeding Under Section 68 of the Act become alive and open for fresh disposal in accordance with law. The petitioner thereafter filed an application for restitution of the properties of which he was dispossessed pursuant to the ex parte order, but contended therein that the alleged delivery of possession was collusive and fraudulent and Inspite of the writ of delivery of possession reported to have been executed, the uetitioner is still continuing in possession and is being threatened, by this - present opp. pirty No. 3 to be dispossessed at any time. The Assistant Commissioner of Endowments dismissed the said application by his order 'dated 1 -9 -1989 (Annexure -13) holding that Section 144 of the Civil Procedure Code under which the prayer for restitution has has made is inapplicable in view of the decision of this Court reported in AIR 1389 Ori. 103 (Garuda Singh Majhi v Dhana Bai and others) and also for the reason that restitution Under Section 151, CPC is inappropriate in the facts and circumstances' of the case. The petitioner challenged the aforesaid order in Annexure -13, in a revision before the Commissioner of Endowments (R. C. No. 36/89) Under Section '9 of the Act. The Commissioner of Endowments after, hearing both parties by his order dated 22 -8 -1990, copy of which is Annexure -17, dismissed the revision holding that the decision reported in AIR 1989 Dri. 103 (supra) relying on which the Assistant Commissioner of Endowments rejected the prayer for restitution, fully applies to.tha present case and the decision of the Supreme Court reported in AIR 1977 S. C. 1569 (Rusching Schmitz Private Ltd. v. P. T. Manghani and another) which was cited or: behalf of the present petitioner is clearly distinguishable on facts. Having held that the said decision of the Supreme Court is not applicable, the Commissioner of Endowments dismissed the revision further observing that the petitioner having himself stated in his application that he has not been physically dispossessed from the lands in question, his claim for restitution is not maintainable.

(3.) THE only question which remains to be decided in this writ application is -and to whether the petitioner's prayer for restitution should have been allowed by the Assistant Commissioner Endowments and the Commissions - o; Endowments, The Assistant Commissioner of Endowments as well as the Commissioner of Endowments have relied upon the decision of this Court reported in A.I.R. 1 -1989 Orissa 03 (supra) and held that Section 144 C.P C. does not apply to a case where the ex parts decree is set aside by the same Court i,e; what has been precisely held in the decision of this Court referred to above. The correctness of the principle decided in that case waiguesdonecf ' by the Seamed counsel for the petitioner and we, therefore, proceed -to analyse the scope and object of the said Section.