ELLAPPA NAICKEN Vs. KLAKSHMANA NAICKEN (DEAD)

JUDGEMENT

(1.) This is an application to revise the order of the Sub-Divisional Magistrate of Karur dated the 30 November, 1946, by which he refused to direct the handing over of the immoveable property in dispute between the parties, on the ground that the petitioner before him was not entitled to the possession of the properties because he has not got an order from a competent Court determining his rights or that he was entitled to possession thereof. Proceedings under Section 145 of the Criminal P. C. had been initiated and were pending between the parties in 1941 and finally on the 20 February, 1942, the Joint Magistrate, Karur, passed an order under Section 146 of the Criminal P. C. directing that the village munsiff of Alamanattupatti be appointed receiver for the purpose of holding possession of the disputed properties as that Court was unable to satisfy itself as to which of the parties was then in possession. Accordingly the village munsiff entered possession and has been collecting the rents and profits thereof.

(2.) The respondents to this application filed O.S. No. 141 of 1943 on the file of the District Munsiff's Court, Karur, for a declaration of title and possession of the suit properties praying that the Court may be pleased to declare that he is entitled to possession of the properties and to receive rents and profits. The petitioner was sole defendant in the suit. On the 7th December, 1944, this suit was dismissed for default. An application to set aside this order of dismissal under Order 9, Rule 9, Civil Procedure Code, was also dismissed by the District Munsiff on 20 July, 1945. An appeal against this order shared the same fate at the hands of the District Judge of Trichinopoly on the 15 January, 1946, with the result that the plaintiff's suit for declaration and possession now stands dismissed.

(3.) The effect of this dismissal under Order 9, Rule 9, Civil Procedure Code, is that the plaintiff is precluded and debarred from bringing a fresh suit on the same cause of action for the same relief.