BIRAM BENI AMMAL Vs. SYED SHUMSUDDIN

JUDGEMENT

(1.) The suit is for possession of property. The plaintiffs and appellants before us previously brought O.S. No. 635 of 1900 against the same defendants Nos. 1 to 8 for the recovery of possession of the same property. The matters in dispute between the plaintiffs and the defendants Nos. 1 and 2 were compromised and there was a decree in accordance with the terms of the compromise. The suit against the defendants Nos. 3 to 8 was withdrawn without permission to bring a fresh suit. In executing the decree against the defendants 1 and 2, the plaintiffs were obstructed by the defendants 3 to 8 and the plaintiff's application to remove the obstruction was registered under Section 331 as a suit between the decree-holder as plaintiff and the defendants 3 to 8 as defendants. Both the lower courts have dismissed the suit on the ground that Section 373 bars the suit. It is contended before us in second appeal that the above section only precludes the plaintiff "from bringing a fresh suit" and that this suit cannot be treated as one brought by the plaintiffs as under Section 331. It is the claim of the person obstructing the execution of the decree that is or ought to be numbered and registered as a suit. We are unable to agree with this contention. In Jathavedan Nambudri V/s. Kunchu Achen (1906) I.L.R. 30 M. 72 and Sukhan Singh V/s. Baij Nath Goenka (1907) 12 C.W.N. 115 it has been held, and we think rightly, that it is the decree-holder's application to remove the obstruction and give him possession of the property that should be registered as a suit, and the words of the section that the decree-holder must be treated as the plaintiff support that view. There is no reason, therefore, why this suit should not be treated as one brought by the plaintiff.

(2.) In Gowri Shankar V/s. Maida Koer (1904) I.L.R. 31 C. 516 it was held that an application registered as a suit under Section 525, Civil Procedure Code, must be treated as a suit brought by the applicant under the terms of Section 373, Civil Procedure Code.

(3.) We think the decision is right and dismiss the second appeal with costs.