SIVASAMBA IYER Vs. KUPPAN SAMBAN

JUDGEMENT

(1.) It is argued, first, that the lower Appellate Court s decision, dissenting from that of the District Munsif in favour of the respondents-defendants, cannot be sustained, because no appeal lay to it. The question was between parties to the decree under execution, though against defendants no relief had been granted, and related to the propriety of a delivery. It, therefore, in our opinion was one for disposal under Section 47 of the Code of Civil Procedure. Jathavedan Nambudiri v. Kunchu Achan 30 M. 72; 2 M.L.T. 34; 16 M.L.J. 433, relied on by plaintiff, decided only that a dispute between such parties could be dealt with by enquiry under Section 331 of the Code of Civil Procedure and a subsequent suit, not that the procedure under Section 244 of the Code of Civil Procedure was not a legitimate alternative, the headnote to that effect being inaccurate. The question is, in our opinion, concluded by Vibudhapriya Tirthaswami v. Yusuf Sahib 28 M. 380; 15 M.L.J. 202, which was followed in Sorabji Coovarji v. Kala Raghunath 12 Ind. Cas. 911; 36 B; 156; 13 Bom. L.R. 1193 and which is consistent with the course of decisions in this Presidency. Section 47, we must hold, is comprehensive and the fact that an alternative procedure by suit, instead of appeal, is provided in certain circumstances cannot affect its character. We, therefore, disallow this contention.

(2.) Next, it is argued that the District Munsif erred in allowing the defendants to include two items in their petition by an amendment, which would ordinarily have been out of time. The objection was not taken in the lower Appellate Court and we have not been provided with any materials for a consideration of the facts on which the District Munsif proceeded. The objection fails.

(3.) On the merits, the lower Appellate Court s findings are clear and sufficient, and we have not been shown that the plaintiff was in any way prevented from adducing evidence before the District Munsif. The appeal against appellate order and the civil revision petition fail and are dismissed with costs of the appeal only.