GUDIMETLA RAMIREDDI Vs. GUDIMETLA SATYAM

JUDGEMENT

(1.) These matters arise out of a suit brought by the present appellant for a declaration of his title to a certain land and an injunction or in the alternative for possession. The plaintiff originally acquired an interest in the land by a purchase. The defendant disputed that title. There was some sort of a fight in the course of which the plaintiff is alleged to have caused grievous hurt to one of the defendants. A criminal prosecution of the plaintiff resulted and it is common ground that there was a compromise of the disputes between the parties in order to put an end to the criminal prosecution and as a result of that compromise the plaintiff executed a settlement deed conveying his rights in the property to the defendants. This was followed up by another dispute, the plaintiff alleging that the conveyance executed by him in the course of criminal proceeding's was invalid. It would appear that there was a danger of a fresh resort to violence and that. The Police intervened and the Magistrate issued notice, to both parties under Section 145, Criminal Procedure Code. Thereupon the plaintiff filed the suit referred to above and two days after the filing of the suit, in pursuance, of an order prohibiting the parties, from entering upon the property in dispute, both the plaintiff and the defendants gave an undertaking to the Magistrate that they would not eater upon the property without orders of Court.

(2.) The suit dragged on for years. During the first year a Receiver was appointed who permitted the plaintiff to harvest the crops on terms. In the subsequent years the right to harvest the crops was auctioned by the Court and in each year the plaintiff was the successful bidder, and he executed a series of security bonds which have not been exhibited in these proceedings, but they were looked into by both the lower Courts, and I am informed that by their terms the plaintiff undertook to pay the amount of his bid whenever ordered to do so that the Court and gave his property as security for so doing. Fife suit terminated in a decree of the trial Court recognizing the title of the plaintiff and also finding that he was in possession. The matter was taken up in appeal and the Appellate Court found that the plaintiff was bound by his conveyance of title, to the: defendants and was, therefore, not entitled to the property, and in the circumstances found that no decision as to possession was necessary. After this decree dismissing the plaintiffs suit, the defendants filed an execution application in which they prayed for costs and interest, for realization of the profits during the period of the suit by the enforcement of the security bonds and for mesne profits by way of restitution during the period between the decree of the trial Court and the Appellate Court's decree. The learned District Munsif permitted execution to proceed for costs and interest, but rejected he application so far as it related to the enforcement of the security bonds and the claim for mesne profits the interval between the two decrees. The lower Appellate Court, disagreeing with the latter part of the decision of the District Munsif, held; that the security bonds could be enforced execution proceedings or by a separate suit according to their terms and according to the person in whose favour they were made out, and also held that the defendants were entitled to mesne profits on the analogy if restitution under Section 144, Civil Procedure code, with respect to the subsequent period, though the order would have to be passed under Section 151. Civil Procedure Code, as the: defendants were not, strictly speaking, ejected from the property by the operation of the decree which had been reversed.

(3.) The plaintiff has filed both an appeal had a revision petition with the same grounds to cover any possible objection that a second appeal, does not lie. The main contention urged before me is that no appeal lay from the order of the District Munsif in so far as it relates to matters which do not fall strictly under Section 144, though the application was framed as coming under that section. The argument is that Section 151, under which the learned Subordinate Judge finds that the order should have been passed, is not an appealable section and that the order of the lower Court rejecting the application for the enforcement of the security bonds and subsequent mesne profit must be regarded not as an order under Section 144 but as an order under Section 151 and therefore it must be treated as one against which no appeal lay. The learned Subordinate Judge met this contention by a reference to the case in Raman Nambyar V/s. Pulasseri Thekkee wherein it was held that the right of appeal is determined not, by what the Court should have done, but, by what it purported to do, and that if the Court purported to act under a provision of law which carries a right of appeal against the order, that right of appeal will exist even though the order should have been under another provision against which there is no appeal.