RASU PILLAI Vs. VAITHILINGA MUTHIRIAN

JUDGEMENT

(1.) Defendant 2 is the appellant in this second appeal and the only point that is capable of being raised in second appeal is whether this suit was competent in respect of property No. 1, in other words, whether the plaintiff's remedy in respect of that property was not by way of execution. To understand this point the following facts are necessary to be known. In a former suit, No. 445 of 1918 brought by the present appellant against the present respondent 1 and his mother who was then alive the appellant sued for possession of this self same property, item 1 and obtained a decree. He got son of it in execution pending peal.

(2.) In the appeal the decree of the first Court was reversed. After the reversal the present respondent 1's mother who was a co-defendant in the suit applied for restitution by redelivery of the property. After he had got possession through Court the appellant had before the application for restitution walled up the opening of property No. 2 in the present suit which is used as a passage from the street to property No. 1 which is a house. The result of this was that no one could get access to property No. 1 except by scaling over the wall or knocking it down. On the restitution petition the present appellant pleaded that the wall which was obstructing the passage to property No. 1 house was erected on his own property which was not included in this suit and therefore no order could be made with respect to it. As a consequence the Court ordered possession of house property No. 1 to be restored to respondent's 1 mother but dismissed the application so far as it related to the wall or the property on which it stood. Then instead of asking the Court to carry out its own order, respondent 1 after his mother's death filed this suit for recovery of both items 1 and 2, claiming property No. 1 as already de- creed by the former suit and property No. 2 as a portion of the premises attached to the house by which approach to the house was secured from the street. It has now been found that property No. 2 belongs to respondent 1 and this second appeal is so far as that matter is concerned, incompetent. But it is urged that so far as property No. 1 is concerned the respondent had no right to bring this suit.

(3.) The lower Courts have dealt with this question on the footing that a new cause of action arose when the appellant built a wall preventing access to the house and on that ground held that the suit was competent in respect of the house also. I do not see how any cause of action arises for carrying out the order of the Court. The only new cause was not one of action but one of removing the obstruction to executing the Court's own order. What the appellant did was to place an obstruction in the way of the order being carried out. That is not a new cause of action so far as the carrying out the order itself is concerned and I think the lower Courts were not right in their view about a new cause of action so far as executing the order for restitution was concerned.