M K SWAMIRAO Vs. JJVALENTINE

JUDGEMENT

(1.) The plaintiff in this case obtained an ex parte decree against the defendant on the 27th of November 1915. On the 25th of March an application for setting aside this decree was made by the defendant. The plaintiff had applied for execution and he executed the decree on the 17th of April 1916. On the 1st of July 1916 the ex parte decree was set aside upon certain terms as to costs and thereafter the suit was transferred from the Court of the First Class Subordinate Judge of Poona to the Haveli Court. On the 10th of August 1916 the defendant applied for the restoration of the property which the plaintiff had recovered in execution of the ex parte decree. This application was made to the Court of the First Class Subordinate Judge at Poona. The Joint Subordinate Judge, who disposed of this application, was of opinion that the application ought to have been to the Haveli Court and that his Court had no jurisdiction to entertain the application. The defendant appealed to the District Court, and the learned District Judge held that Section 144 of the Code of Civil Procedure under which the application was made for restitution had no application to the present case, and expressed his opinion that it was open to the defendant to apply to the Court, In the result he dismissed the appeal.

(2.) The defendant has appealed to this Court. It is urged on his behalf that his application is within the scope of Section 144 and that in any event it is open to him to make the application under Section 47 of the Code of Civil Procedure. It is not clear on the terras of Section 144 that such an application would be within the scope of the section. It is quite clear in my opinion that the defendant, who applied for restitution, is entitled to have the property restored to him when the decree under which the plaintiff got possession of it has been set aside. If not under Section 144 of the Code of Civil Procedure, under Section 47 he can make the application for getting back the property; and, in my opinion, the present application which purports to have been made under a 144, could be treated as an application relating to the execution of this decree. It is a matter not of any practical importance whether it falls under Section 144 or Section 47 of the Code of Civil Procedure. The appellant is entitled to the restitution of this property. I also feel clear that the Court, which originally passed the decree had jurisdiction to entertain this application and that the application was properly made to that Court.

(3.) I would accordingly sot aside the orders of the lower Courts and send back this application to the Court of the first instance to be disposed of according to law.