SHABAN RATHER Vs. SHABAN DHAR

JUDGEMENT

(1.) IN consequence of an exparte decree passed by Munsiff Kulgam on 27 -4 -1962 in a suit for possession of land brought by respondents Nos. 5 and 6 against the defendants including predecessor -in -interest of respondents Nos. 1 to 4 execution was taken out and the plaintiffs respondents (5 -6) were given possession. The appellants thereafter purchased the said property from respondents 5 and 6. The defendants had meanwhile applied to the trial court for setting aside the exparte decree, but this was rejected. On appeal the District Judge Anantnag vide his order dated 15 -7 -1965 set aside the exparte decree. Respondents Nos. 1 to 4 moved an application under section 144 C. P. C. for restitution of possession. The Munsiff Kulgam vide his order dated 31 -8 -1967 dismissed the same. Against this order of Munsiff Kulgam refusing to grant restitution of possession an appeal was taken before the learned District Judge Anantnag who set aside the order of court of first instance and directed the Munsiff to proceed in the case in accordance with the observations made in the judgment. The learned District Judge held the view that it was not open to the trial court to refuse the grant of restitution to the defendants in as much as the matter of the vendees being the bonafide purchasers was never pleaded by them in the application. Bona -fides could not have been presumed and the trial court was scarcely competent to withhold a restitution by constructing a case of the vendees. Aggrieved by this order of the learned District Judge the vendees have come up in further appeal before this court.

(2.) I have heard the arguments in the case.

(3.) THE matter raises an interesting point relating to the application of doctrine of restitution as contemplated by Sec. 144 of the Civil Procedure Code to the present case.