ALLAHABAD THEATRES LTD Vs. RAM SAJIWAN MISRA

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought - by him against the respondent for arrears of rent and ejectment with respect to the building known as "Jawahir Palace" situate in Mohalla Mirganj in the city of Allahabad. The plaintiff is a company known as the Allahabad Theatres, Limited and is the owner of the building in question, It had given a lease of that building to the respondent, Ram Sajiwan Misra. The suit was decreed ex parte on 18 May 1948, and possession was delivered in pursuance of the decree to the appellant on 7 July 1948. There is some dispute as to whether the possession that had been delivered was actual possession or merely formal possession. But we are not concerned with that matter at present. On 5 July 1948, however the respondent applied to the Court for the setting aside of the ex parte decree and the ex parte decree was set aside on 28 July 1948, on the respondent depositing into Court a sum of Rs. 9,288- 13-0 representing the arrears of rent claimed, rent pendente lite and costs. After that, on 29 July 1948, the respondent put in an application for restitution by re- delivery of possession of the building in dispute to him. The application was made under Secs.144, 47 and 151, Civil P.C. The appellant objected and after hearing the par-ties the lower Court granted the application by an order dated 2nd August 1948. The Court held that S3. 144 and 47 did not apply to the case but granted the application for restitution acting under Section 151, Civil P.C.

(2.) A preliminary objection is raised on behalf of the respondent that no appeal lies. It is pointed out that the appellant himself had stated in his objection that Section 144, was not applicable to the present case inasmuch as the original decree had not been varied or reversed by an appellate Court but by the same Court by which the decree had been passed. This contention was apparently accepted by the Court below which was of opinion that Section 144 was not applicable.

(3.) There is a number of rulings of the Calcutta, Madras and Nagpur High Courts in which the view has been taken that in a case in which Section 144 is not strictly applicable, if the Court expands the remedy provided by that section in the exercise of its inherent jurisdiction under Section 151, Civil P.C., an appeal will lie as from an order passed under Section 144. (See the cases of Tarak Nath Boy v. Panchanan Banerjee , Gopal Laskar V/s. Harihar Mukherjee , Bijala Pedda Bali Reddi V/s. Bathula Chinna Nagi Reddi and Ors. A.I.R. (28) 1941 Mad, 564, S. Ayyaswami Ayyar V/s. Sivak-Mammal A.I.R. (20) 1933 Mad. 780, Sheonandan Lal Gurudayal Shrivastava V/s. Gopal Babaji Nafde and Ors. A.I.R. (30) 1943 Nag. 172 and Mst. Champabai V/s. Shree Daulatram Sharma and Ors. A.I.R. (25) 1938 Nag. 326. It will be noted that an order passed under Section 144 is according to the definition given in Sub-section 2) of Section 2 of the Code, a decree and an appeal would, therefore, lie from an order passed under Section 144. This view has not been followed by the Lahore and Patna High Courts. There is, however, no case of our own High Court in which the same point may have been specifically considered.