ASHUTOSH NANDI Vs. KUNDAL KAMINI DASI

JUDGEMENT

(1.) This is an appeal by a purchaser of a holding in execution of a rent decree. It appears that there was a litigation between respondents 1 and 2, and respondents 3 and 4 as to the title to the property in question. When they were litigating with regard to the property, the landlord, respondent 3, brought a suit for rent and obtained a decree against respondent 4 who was said to be his recorded tenant. In execution of that decree, the holding was sold and purchased by the appellant. The title suit between the respondents was decreed in favour of respondent 2 and dismissed as regards respondent 1 in the trial Court. There were two appeals against that decree and ultimately the title to the property was found in favour of both respondents 1 and 2. The proceeding out of which this appeal arises was instituted by respondents 1 and 2 under Section 144, Civil P.C. for recovery of possession of the property which was purchased by the appellant in execution of the rent decree.

(2.) It was said that the result of the litigation between respondents 1 and 2 on the one hand and respondents 3 and 4 on the other was that the rent decree obtained by respondent 3 against respondent 4 was reversed and, therefore, the applicants were entitled to restitution by way of recovery of possession from the auction-purchaser at the rent sale by the present proceedings. The trial Court held that Section 144 applied to the case and this opinion was affirmed by the learned District Judge on appeal by the auction-purchaser. Against that order the auction-purchaser who was the opposite party in the trial Court has preferred this appeal. His contention is that it is not a matter which falls within the provisions of Section 144 of the Code, that this section only applies where the decree of a Court of first instance is varied or reversed on appeal and it does not apply to a case where, as the result of a different suit, the title of a person derived by purchase under quite a different proceeding in execution of a decree which stands unreversed is questioned. In my opinion this contention is sound and must be accepted, A decree can only be said to be varied or reversed by an appeal, review or revision.

(3.) It may be possible that the result of a subsequent suit may affect the right of a person under a decree obtained in a previous suit but it seems to me that it would be straining the meaning of words to say that the previous decree is reversed or varied by the subsequent decree. Apart from authorities, which I shall presently discuss, it seems to me that the provision that the Court which is to make a restitution is the Court of first instance implies a Court the decree of which is reversed by a Court of appeal. Take for instance this case, where the decree for rent might have been passed by one Court, and confirmed on appeal in execution of which the appellant purchased the properly. The suit for title between the respondents might have been tried by another Court which ultimately succeeded on appeal. Which Court of first instance is to make restitution ? The legislature would not have left the matter unprovided for if it was contemplated that a decree might be reversed by a separate suit. Reference may be made to Section 583 of the Code of 1882 which has been replaced by Section 144 of the present Code, if there is any doubt about the matter. That section provided that any party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal wag to apply to the Court which passed the decree against which the appeal was preferred.