RAMESH CHANDRA PANIGRAHI Vs. BINAYAK SWAIN

JUDGEMENT

(1.) THE legal representatives of the original plaintiff-decree-holder-purchaser have filed this Letters Patent Appeal against the judgment dated 3rd October 1958 of a single Judge of this High Court in Misc. Second Appeal No. 24 of 1958 arising out of restitution proceeding under Section 144 of the Civil Procedure Code.

(2.) THE chequered career of the case is interesting to he narrated. The original plaintiff brought Money Suit No. 500 of 1941 for recovery of a sum of Rs. 970/ -. The suit was dismissed on 17th August 1942. The plaintiff filed an appeal before the District Judge of Ganjam against the aforesaid decree of dismissal, and the appeal was allowed on the 2nd March 1943. The defendant, therefore, appealed to the High Court, the second appeal being numbered as S. A. 100 of 1943 filed on 19th July 1943. The High Court by its judgment dated 11th November 1946 set aside the judgment and decree passed by the lower appellate Court and remanded the case to the lower appellate Court for further hearing. The learned Judge disposing of the second appeal gave discretion to the lower appellate Court that if it thought fit the case may be remanded to the trial court. The lower appellate Court, therefore, remanded the case for retrial of the suit by the trial Court. This order of remand by the lower appellate Court was passed on 11th April 1947. After receiving the case on remand, the learned Munsif dismissed the suit on 29th november 1947 against which the plaintiff again came up in appeal to the District judge which was numbered as M. A. No. 49 of 1947. The appeal succeeded and the suit was decreed on 29th November 1948 for recovery of a sum of Rs. 1300/-and odd including cost. The defendant, therefore, again came up to the High Court in second Appeal No. 112 of 1949 which was eventually dismissed on 27th August 1954 and the decree passed by the lower appellate Court in favour of the plaintiff was confirmed.

(3.) THE more important part of the history of the proceedings necessary for appreciating the question of restitution is as follows: