MD ETMAD Vs. BAURIBANDHU MOHANTY

JUDGEMENT

(1.) This is an appeal against the order passed by the learned Subordinate Judge, First Court, Cuttack, partially allowing the respondent's petition for restitution under Section 144 of the Code of Civil Procedure (referred to as 'the Code').

(2.) THE relevant facts in short are stated below : - The appellants instituted Title Suit 215 of 1981 in the Court of the learned Subordinate Judge, Cuttack, against the respondent for specific performance of contract in respect of a pucca house consisting of five rooms and appurtenances standing on plot No. 326 with an area of Ac. 0.041 decimals in khata No. 13 of Mauza Patpur within Lalbag Police Station of Cuttack town (referred to as suit property). On 6.1.1983, the suit was decreed ex parts by the learned Additional Subordinate Judge. Cuttack, against the respondent. On 23.3.1983, the appellants in Execution Case No. 5 of 1983 put the ex parte decree in to execution and in due course obtained delivery of possession of the suit property on 8.12.1584. On 10.12.1984, the respondent made a petition under Order 9, Rule 13 of the Code in Misc. Case No. 66 of 1984 for setting aside the ex parte decree. On 6.4.1985 the ex parte decree was set aside by the learned Additional Subordinate Judge, Cuttack. On 10.4.1985, a petition under Section 144 of the Code registered as Misc. Case No. 24 of 1985 was filed by the respondent in the Court of the learned Subordinate Judge, First Court, Cuttack, claiming restitution of the suit property.

(3.) ON hearing both parties, the learned Subordinate Judge, First Court, Cuttack, allowed restitution in part and directed that the respondent was entitled to redelivery of the suit property except the room which was in possession of the appellants. The appellants have challenged the order mainly on the ground that the learned Subordinate Judge, First Court, Cuttack, had no jurisdiction to entertain the respondent's petition under Section 144 of the Code. The respondent has assailed the same by filing a cross -objection on the ground that the learned Court below erred in not redelivering the entire suit property in his favour.