BHUTA JAYATSING Vs. LAKADU DHANSING

JUDGEMENT

(1.) In consequence of the difference of opinion between Beaman and Heaton JJ., the following point of law has been referred to me for decision under Section 98 of the Code of Civil Procedure:-- Whether a plaintiff who has obtained a decree in his favour in the trial Court and gone into possession under it, and has been put out of possession under the decree of the first Court of appeal reversing the trial Court s decree (no claim for restitution having at this stage been preferred against him by the defendant), and who has succeeded in the Court of Second Appeal which has restored the judgment of the trial Court, can claim any benefit under Section 144 in respect of the time he was dispossessed between the decrees of the first and second appeal Courts 1.

(2.) I am of opinion that the plaintiff can claim such benefit under Section 144 of the Code of Civil Procedure. The words of the section are plain and cover the case of the plaintiff claiming the benefit of the section under the circumstances stated in the point of reference.

(3.) I do not quite follow the significance of the parenthetical clause in the question, viz., and - no claim for restitution having at this stage been preferred against the defendant. It probably refers to such claim for restitution in the form of compensation under the intermediate decree, as has been mentioned in the judgment of Beaman J. The defendant, however, in recovering back the possession under the intermediate decree did make a claim for restitution though not for restitution by way of compensation. In the view I take of the point it makes no difference whether the defendant did or did not make a claim for restitution in any sense under the intermediate decree.