MD JAKIR Vs. MURARILAL

JUDGEMENT

(1.) This appeal is directed against the order of the Subordinate Judge rejecting the application of the appellant who is defendant No. 2 in the suit for restitution of the property in question.

(2.) The short facts are that respondent No. 1 filed Title Suit No. 14 of 1974 in the court of the Subordinate Judge for specific performance of contract of sale and for direction that defendant no. 1 should execute and register the sale deed pursuant to the agreement between plaintiff and defendant No. 1 dt. 4-4-1974, In the said suit a prayer had also been made for a declaration that the sale deed alleged to have been executed by defendant No. 1 in favour of defendant No. 2 was collusive, sham and no title passed on to defendant No. 2 on account of the said invalid sale deed. After filing of the suit, the plaintiff had filed an application for temporary injunction against defendant No. 2 with the prayer that defendant No. 2 be restrained from entering upon the suit premises. The trial court by order dt. 25-1-1975 issued an order of injunction restraining defendant No. 2 from entering into the premises in question. Notwithstanding the said restraint order, it was alleged by the plaintiff that defendant No. 2 trespassed upon a portion of the suit premises and, therefore, the plaintiff filed an application for taking suitable action against the said defendant No. 2 for having violated the order of injunction passed by the trial court. This application was allowed and the court directed defendant No. 2 to give possession of the premises to the plaintiff. Defect No. 2 had carried an appeal against the said order to this Court is Miscellaneous Appeal No. 39 of 1976. In the meantime, plaintiff's suit was also decreed ex parte on 12-8-1976. Defendant No. 2 filed an application under O.9, R.13, C.P.C., for setting aside the ex parte decree and the said application which was registered as Misc. Case No. 35 of 1976 was dismissed. Against the said dismissal, defendant No. 2 filed an appeal in this court being Miscellaneous Appeal No. 293 of 1977. The earlier appeal against the direction of the Subordinate Judge to deliver possession of the property to the plaintiff (Misc.Appeal No. 39 of 1976) was disposed of on 10-8-1977 by a consent order wherein defendant No. 2 agreed to deliver possession of the suit house to the plaintiff and such direction being subject to the result of the final appeal in the main suit. The Miscellaneous Appeal of defendant No. 2 against the ex parte decree (Misc.Appeal No. 293 of 1977) was allowed and ex parte decree was set aside by order dt. 25-4-1978. After setting aside of the ex parte decree, the suit in the meantime has been re-disposed of and the trial court has dismissed the suit by judgement dt. 31-1-1979 against which the plaintiff has filed First Appeal No. 97 of 1979 which is pending in this Court. Defendant No. 2 has also filed a cross-appeal since it has been found by the learned trial judge that the sale executed by defendant No. 1 in favour of defendant No. 2 on 16-4-1974 is invalid. After disposal of the suit, the defendant No. 2 filed the application under Ss.144 and 151 of the C.P.C. before the learned trial judge praying for restitution of the property. The Subordinate Judge having rejected the said application, defendant No. 2 has preferred the present appeal.

(3.) The short question for consideration in this appeal is whether in the facts and circumstances, as narrated earlier, S.144 of the Civil P.C. has any application at all or not. S.144 of the C. P. C. reads as follows :-