MULKJIT SINGH Vs. NARAIN SINGH AND ANOTHER

JUDGEMENT

(1.) MULKJIT Singh plaintiff had filed a suit for possession of 77 Kanals 6 Marlas of land situated in the revenue estate of Samana, against Narain Singh and the Wakf Board, Ambala and his suit was decreed by the trial Court. In execution of the decree Mulkjit Singh plaintiff obtained possession of the land. Narnin Singh defendant filed an appeal against this decree in the Court of the District Judge, Patiala, which was accepted by the Additional District Judge, Patiala, on April 6, 1973, and the decree of the trial Court was set aside and the suit of Mulkjit Singh plaintiff was dismissed. Feeling aggrieved Mulkjit Singh plaintiff filed this second appeal in the High Court which was admitted. His dispossession was stayed meanwhile. Narain Singh defendant -respondent filed this application to vacate the stay order. It was alleged that he is entitled to get back possession from the appellant under the provisions of section 144 of the Code of Civil Procedure. This application was contested by the appellant.

(2.) SECTION 144(1) of the Code of Civil Procedure, lays down that where and in so far as the decree is varied or reversed the Court of first instance shall on the application of any party entitled to any benefit by way of any restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the same position which they would have occupied but for such decree as has been varied or reversed and for this purpose the Court may make any orders, including orders for refund of costs and for payment of interest, damages etc

(3.) THE legal position, therefore, is that if a decree for possession of property is passed by the trial Court or by the Court of first appeal and stay of is execution is applied for either before the Court of first appeal or the Court of second appeal, as the case may be, the Court will exercise its discretion in accordance with the provisions of Order 41 Rule 5, Civil Procedure Code. But, where the property in suit was in possession of one party and the opposite party took its possession in execution of an erroneous decree of the trial Court, which is reversed in appeal, then the appellant in second appeal cannot be granted stay of restitution on account of the pendency of the second appeal because of the mandatory provisions of Section 144, Civil Procedure Code; The right of restitution under Section 144 is absolute and the Court has no jurisdiction to deprive such a party of the right conferred upon him by statute and is bound to grant the same if the conditions laid down in this section are satisfied.