SEVATHA GOUNDAN Vs. PAPPAMMAL

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of restitution proceedings under Section 144, Civil Procedure Code, commenced by one Pongiammal, the 1 defendant in O.S. No. 1010 of 1924, on the file of the Court of the District Munsif of Coimbatore. The facts of the litigation that led to the present proceedings are clearly set out in the judgment of the Appellate Court and need not, therefore, be restated for purposes of this Civil Miscellaneous Second Appeal.

(2.) The appellant before this Court is a transferee of the properties involved in this suit pendente lite. One Ramaswami Goundan instituted O.S. No. 1040 of 1924 to recover possession of certain properties as reversionary heir to an alleged infant son of Chinna Ramana Goundan. It was contended that the infant son took the property to the exclusion of his sister Chinnakkal and that the 1 defendant Pongiammal the present respondent and the step-mother of Chinna Ramana Goundan (now in possession as guardian of Chinnakkal) had no right to the possession of the same. The learned District Munsif dismissed the suit holding that the existence of the infant son was not proved. This decision was set aside in appeal A.S. No. 77 of 1927 dated August 1, 1928. As a result of the decision of the Appellate Court the plaintiff obtained possession of the properties on January 28, 1929. The present respondent Pongiammal preferred a second appeal (S.A. No. 495 of 1929) against the decision in A.S. No. 77 of 1927 in February, 1929. On May 30, 1929, Ramaswami Goundan sold the property to the present appellant. Second Appeal No. 495 of 1929, was compromised between the parties and a compromise decree was passed by the High Court. Ramaswami Goundan, the respondent in the second appeal, acknowledged the right, title and interest of Chinnakkal and obtained Rs. 3,000 in full settlement of all disputes. It was also stated in the said decree that Ramaswami Goundan shall be debarred from setting up any title or interest in and shall not disturb the possession and enjoyment of the suit properties by the said Chinnakkal and her heirs. The second appeal having been thus concluded by the compromise decree, Pongiammal started restitution proceedings under Section 114, Civil Procedure Code which, as I have already stated, has led to this miscellaneous second appeal. Both the lower Courts held that she was entitled to obtain restitution of the properties and orders were accordingly passed in her favour.

(3.) The transferee decree-holder wants to have the order of the lower Courts set aside on two grounds. It is argued that under Section 144, Civil Procedure Code Pongiammal, the respondent, is not entitled to apply for restitution inasmuch as she is not, according to the appellant, entitled to any benefit under the decree of the High Court. The argument is that what is declared by the compromise decree of the High Court is the right of Cinnakkal to the properties and not the right of Pongiammal who has absolutely no right of any kind to the properties, she being only the step-grandmother of Chhinnakkal. Of course in the suit she claimed that she was in possession on behalf of Chinnakkal. To my mind this argument overlooks the real question that arises for consideration under Section 144, Civil Procedure Code. That question is whether the respondent is entitled to any benefit by the supersession or reversal of the decree of the lower Court by the decree of the Appellate Court. That is to say, if the lower Court's decree is reversed by the Appellate Court will the respondent be entitled to any benefit by such reversal. As was pointed out in Hurro Chander Roy Chowdhry v. Sooradhonee Debia B.L.R. Sup. Vol. 985 at p. 992 : 9 W.R. 402. (See Shanmugasundara V/s. S. Ratnavelu 139 Ind. Cas. 348 : 63 M.L.J. 383 at p. 393 : Ind. Rul. (1932) Mad. 661 : (1932) M.W.N. 1044 : 36 L.W. 504 : A.I.R. 1933 Mad. 33 : 55 M. 1025 restitution is to be made of all, that the party against whom the erroneous decree had been enforced, had been deprived by reason of its having been enforced. The question, therefore, is: Has Pongiammal been deprived of possession of the property by reason of the enforcement of the appellate decree, the decree which was superseded by the compromise decree of the High Court. To this there can be only one answer. Before the decree was executed admittedly she was in possession of the property. Her possession which commenced before the litigation began was continued by the first Court and was terminated by the execution of the decree of the Appellate Court. She was, therefore, deprived of possession and the result of the supersession of the Appellate Court's decree will be a restoration to Pongiammal of the possession of the property, which she was entitled to, prior to the endorsement of the appellate decree. This is the benefit which she is entitled to under Section 144, Civil Procedure Code, a benefit which arises by the supersession of the lower Court's decree by the decree of the High Court. I have no doubt, therefore, that Pongiammal, the respondent is entitled to apply under Section 144, Civil Procedure Code. I may also say that it is not seriously contended that after the decree of the High Court, Ramaswami Goundan would be entitled to remain in possession of the property nor is it contended that Chinnakkal will not be entitled to enforce this decree and get possession by taking appropriate proceedings later. These are also additional circumstances to say that the only person entitled to remain in possession of the property after the supersession by the compromise decree of the High Court is the respondent and the respondent, alone. She can, therefore, apply under Section 144 of the Civil Procedure Code for restitution of the property.