NARAYAN ROUT Vs. KISHORE CHANDRA PADHI

JUDGEMENT

(1.) THIS application by the Defendant arises out of an application made by him before the trial Court for restitution under Section 144 of the Code of Civil Procedure. The facts giving rise to the present petition shortly stated are as follows: There was a suit instituted by the Plaintiff for a declaration that the trust in dispute was a private trust and not a public trust and also for recovery of possession of the same. At the trial the suit on contest was decreed. Accordingly on the basis of that decree passed by the trial Court the Plaintiff got delivery of possession over the property in suit. Against that decree there was an appeal taken to the High Court which was numbered as F.A. No. 25 of 1959. The High Court on hearing the parties allowed the appeal and reversed the judgment and decree passed by the trial Court. In the opinion of the High Court the suit as constituted by the Plaintiff was not maintainable in civil Court. Accordingly the decree passed by the trial Court was held to be null and void. Subsequently therefore in pursuance of the decree passed by the High Court an application was filed by the Defendant for restitution of the property which had been taken over in delivery of possession by the Plaintiff on the basis of the decree passed by the trial Court. The trial Court on hearing the application made for restitution held that "the proper authority for recovering the possession of the suit property from the opposite party is the Assistant Commissioner of Endowment who is to be moved on a proper petition under Section 16 (which is perhaps a mistake for Section 68) of the Orissa Hindu Religious Endowments Act. 1951". Against this order the Defendant has now come in revision to this Court.

(2.) IN my opinion, this application filed in revision is misconceived. The order passed by the trial Court dismissing the application made for restitution is clearly covered by the definition of the word 'decree' as given in Section 2(2) of the Code of Civil Procedure. Therein 'decree' means, "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include