TATANAGOWDRA BHIMANA GOWD Vs. PATEL SIDDALINGANA GOWD

JUDGEMENT

(1.) The former of these is a petition to raise the order of the learned Acting District Judge of Bellary and the latter to revise the order of the District Munsif of Bellary. They both relate to the same matter and have been argued together.

(2.) The facts are as follows: O. S. No. 199 of 1916 was a suit on a mortgage executed to the respondent by the brother of the petitioners. The respondent obtained a decree. There was a sale in execution of the decree and the decreeholder bought the properties in execution, To this proceeding and suit the petitioners were not parties. They, the brothers of the mortgagor, obstructed the decree-holder when he came to take possession of the property alleged to have been included in the mortgage. On the petition of the mortgagee in E. A. No. 87 of 1918 the petitioners obstruction was removed on the 4 April 1918 and he was placed in possession of all the lands and a claim order under Order 21, Rule 98, Civil P. C. was made thereon. The petitioners thereupon instituted a suit on 5 April 1918 (O. S. No. 212 of 1918) in the district munsif's Court to vacate this order in E. A. No. 87 of 1918 and for partition and delivery to them of 5/7ths share in the lands. The munsif held (9 December 1918) that the value of the suit was above his jurisdiction and returned the plaint. This was filed on full Court-fee, as O. S. No. 69 of 1918 in the District Court of Bellary and was remitted to the sub-Court for trial. On the 22 March, 1921 the petitioners suit was dismissed. On the 13 October 1921 the petitioners appeal was allowed by the district Court and on 3 October 1923 the second appeal to the High Court was dismissed. In E. P. No. 17 of 1922 the petitioners filed a petition to recover 5/7ths of the property and possession was finally awarded by the district Court in 1921. Now the present petition is that mesne profits may be awarded to the petitioners for the period; about four years (1918-1922), during which they were kept out of possession by the wrong order and decrees passed against them.

(3.) The suit No. 212 of 1918 was of course a statutory suit under Order 21, Rule 103, to establish the right of the plaintiffs to the present possession of the property which they were obliged to bring in consequence of the order overruling their objection to the possession of the decree-holder on 4 April 1918. The question is, can these C. R. Ps. be permitted? The first, as stated, is against the order of the district judge who held that the present application for mesne profits by way of restitution does not lie as the petitioners have not asked for determination and delivery of future mesne profits in the suit itself and there is nothing to preclude them from bringing a fresh suit to recover such profits. It ;hardly contended that the district judge had any jurisdiction to allow restitution. We have been invited to hold that although the matter does not fall under Section 144, Civil P. C. yet the ambit of Section 144 has to be extended on equitable considerations to embrace an application of this sort. The first requisite of Section 144 is that the Court of first instance shall cause restitution to be made. It therefore seems that the district judge had no power to grant restitution and that as regards C. R. P. No. 1019 of 24 that petition must be dismissed.