BANARSI PRASAD Vs. HARE KISHUN RADHEY KISHUN

JUDGEMENT

(1.) The point to be decided in this appeal is whether the appellant is entitled to an order of restitution with respect to some five bales of cotton which were made over to the respondent by one Radha Kishun Choudhry under a compromise. It appears that the Cooperative Society at Allamganj obtained two decrees against Radha Kishun Choudhry and in execution of its decree attached eighteen bales of cotton which were then in the possession of Radha Kishun Choudhry and which were alleged to belong to him. Ten of these bales which were sufficient to satisfy the decree obtained by the Co-operative Society were sold on 11 October 1928 and the sale-proceeds remained in the custody of the Court.

(2.) While this execution proceeding was in progress the appellant brought a suit claiming that the eighteen bales of cotton belonged to him and not to Radha Kishun Choudhry. While the suit was pending the Court issued an injunction against the Bank as well as Radha Kishun Choudhry directing them not to deal with the bales of cotton pending the decision of the suit. The suit was ultimately decided against the plaintiff and the injunction was withdrawn. Meanwhile the firm of Hare Kishun Radha Kishun had obtained a decree against Radha Kishun Choudhry and proceeded to attach the eight bales of cotton which were still lying in Court. Subsequently a compromise petition was filed by Radha Kishun Choudhry and the respondent firm under which five bales of cotton were made over to the latter in satisfaction of its decree whereas three bales were taken away by Radha Kishun Choudhry.

(3.) The appellant in the meantime had preferred an appeal which was ultimately allowed and the decree of the trial Court was reversed. Thereupon he applied under Section 144, Civil P.C., for the restitution of the five bales of cotton which had been made over to the respondent firm by Radha Kishun Choudhry. The Subordinate Judge, before whom the application was made directed restitution holding that the case was goverened by Section 144 read with Section 151, Civil P.C. The firm of Hare Kishun Radha Kishun then preferred an appeal before the District Judge who reversed the order passed by the Subordinate Judge as he was inclined to take the view that Section 144 had no application to the facts of the case. The appellant decree-holder therefore preferred this appeal. The first point to be considered is whether Section 144, Civil P.C., has any application at all to the present case. That section runs thus: Where and in so far as a decree is varied or reversed the Court of first instance, shall on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed.