KUMARAM UNI ACHAN Vs. PKUNHIKRISHNAN NAIR

JUDGEMENT

(1.) We think the Subordinate Judge is right in the view he has taken in the case. That view is supported by the ruling of this Court in Peela Yarakayya V/s. Kanumuri Venkata Krishnamraju 41 Ind. Cas. 684 : 6 L.W. 281 : 22 M.L.T. 232 : (1917) M.W.N. 721. The order under Order XXI, Rule 101, Civil Procedure Code, having been against the defendant and he not having filed a suit in time to contest it, it has become conclusive against him. The fact that there was a pending suit regarding the title to the property and the defendant had filed a written statement in it claiming title did not absolve him from the obligation of filing a suit under Rule 103 if he intended to contest the order under Rule 101. That was what was held in the Law Weekly case. The fact that in the present case the suit was already pending when the order under Rule 101 was made, whereas in the Law Weekly case the suit was one subsequently instituted makes no difference.

(2.) It was contended that the doctrine of lis pendens applies to the present case, but the short answer to it is that there was no transfer of any right here for that doctrine to apply. The Court merely decided that the plaintiff was the person entitled to the possession of the suit property under Rule 101 and as the decision has become final before this case was disposed of, effect must be given to it in this suit.

(3.) The second appeal fails and is dismissed with costs.