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Judgment
The Salem Municipality filed a suit in O.S.NO. 833 of 1972 on the file of District Munsif Court, Salem impleading the petitioner in CRP.No.
2109 of 1994 as the defendant for recovery of Municipal Tax with respect to the property in question. After knowing about the said suit, the father
of the respondents 1 to 3 Chinnaswamy Chettiar filed a petition to implead him as a party and he was impleaded as second defendant in the suit.
On his death, the respondents 1 to 3 have been impleaded as defendants 3 to 5. On 2.2.1973, the said suit was decreed. The Municipality filed
execution petition in E.P.No. 394 of 1984. But unfortunately without impleading the respondents 1 to 3, the properties were brought for sale in the
court auction. The fourth respondent herein is the purchaser and the said sale was confirmed on 31.7.1989 and the fourth respondent took
possession of the properties.
Thereafter the respondents 1 to 3 filed an application in E.A. No. 283 of 1991 u/s 47, CPC. to set aside the sale on the ground that they have
not been impleaded in the execution petition, though they were parties to the suit and the entire amount due to the Municipality as claimed in the
suit was already deposited by them in the court which was not taken not of and the suit was decreed and executed. Accepting the said contention,
the executing court set aside the sale by its order dated 6.7.1992. Aggrieved against the same, the fourth respondent filed C.R.P.No.507 of 1993
before this Court and Abdul Hadi, J, dismissed the revision on 27.10.1993.
Thereafter, the respondents i to 3 filed an application in E.A.No 706 of 1993 u/s 144, CPC. to redeliver of the property to them and that was
ordered on 19.1.1994. Admittedly, they have taken possession from the fourth respondent on 20.1.1994. Against the said order in E.A.No.706
of 1993, the fourth respondent has filed C.R.P.No. 2754 or 1994.
The petitioner in C.R.P.No. 2109 of 1994 filed an application before the executing court under Sections 144 and 151, CPC. to direct the
respondents 1 to 3 to redeliver the possession to him. The lower court rejected the application to limine without numbering the same. Aggrieved
against the order, the petitioner has filed C.R.P.No.2109 of 1994.
Learned counsel for the petitioner has submitted that the petitioner was in possession and the purchaser, namely the fourth respondent took
possession only from him. So, when the redelivery was ordered u/s 144, CPC., the possession should be given to the person, from whom the
possession was taken. So, the lower court is not correct in rejecting the application in limine without numbering the same. The learned counsel has
also relied on the order of M. Srinivasan, J as he then was in C.R.P.No.2701 of 1994 dated 21.10.1994 in support of his submission.
Learned senior counsel appearing on behalf of the respondents 1 to 3 has submitted that the property, admittedly, was purchased in the name of
their mother and the petitioner in C.R.P.No. 2109 of 1994 is only their uncle''s son, who is claiming right in the property only on adverse
possession, which fact was also rejected by this court in C.R.P.No.507 of 1993. Learned counsel has also brought to my notice that the fourth
respondent, the purchaser of the property, is no other than the mother of the petitioner''s daughter-in-law. According to the learned counsel, the
interest of the petitioner in C.R.P.No.2109 of 1994 was not in getting the sale set aside, but to see that the decree and sale were sustained and
purchaser continues in possession of the property. To support his submission, he referred to the counter filed by the petitioner in E.P.No. 283 of
1991. The learned counsel has also submitted that the petitioner in C.R.P.No.2109 of 1994 is not having any title over the property and the
question of handing over the possession to him would not arise, as he cannot be a person who is entitled for the benefit of the order passed in
E.A.No. 283 of 1991 filed u/s 47 of C.P.C. So, the lower court is correct in rejecting the petition by not entertaining the petitioner. According to
the learned counsel, no purpose will be served.
From the above facts, it will be clear that the sale was set aside at the instance of the respondents 1 to 3 in E.A.No. 283 of 1991, which has
become final. The respondents 1 to 3 are defendants in O.S.No. 833 of 1972 and they are also judgment-debtors. The only grievance of the
petitioner in C.R.P.No. 2109 of 1994 is that since possession was taken from him by the fourth respondent, possession should be given to him by
the respondents 1 to 3.
Though in these proceedings title need not be gone into, to find out who is entitled to any benefit by way of restitution prime facie, the claim of
the petitioner has to be tested on merits, with respect to the petitioner''s right to claim restitution.
Section 144, CPC embodies the cardinal principles of law that acts of courts should not be allowed to work any injury on the suitors and it is
the clear duty of the court to place the parties in the position which they would have occupied, but for the erroneous order or decree which it had
passed. In this case, the petitioner came forward with the application that he should be put into possession by way of restitution as the purchaser
took possession from him. But having regard to the circumstances set hereunder, it would inequitable to direct the respondents 1 to 3 who are the
owners of the property which fact was not disputed before me and who are entitled in law to be in possession of the property, to deliver the same
to the petitioner and then direct the respondents 1 to 3 to approach this Court to take possession from the petitioner which course is nothing but
needless ritual. I find that the ends of justice also will not be served by passing such an order. It is inherent in the general jurisdiction of the court to
act right and fairly according to the circumstances towards all parties involved. u/s 144 of the C.P.C., the restitution is not as a matter of course. If
a person from whom possession was taken is not entitled to the property cannot be said to be a person entitled for restitution. The decision
reported in AIR 1941 128 (Privy Council) observed as follows:-
that Justice does not such a preposterous conclusions as they trespassers should be put back in a position which they have no right to occupy.
The petitioner is claiming right in the property only on two grounds that the property was purchased of his own funds in the name of
Chinnammal, the mother of respondents 1 to 4 and he had been in possession from 1949. In view of Benami Transaction (Prohibition Act,) now
he cannot sustain his first stand. While disposing the revision in C.R.P.No. 507 of 1993, Abdul Hadi, J. prima facie found that the petitioner cannot
claim title to the property by adverse possession holding that only from 1969, the property is claimed to be standing in the name of the petitioner.
But the sale deed was on 29.11.1949, when the petitioner was 18 years old. I arrived at this on the basis of the age given by the petitioner in the
affidavit filed in the lower court. From the above, it can be seen that prima facie, the petitioner is not having right in the property.
Above all, while the respondents 1 to 3 filed application to set aside the sale in E.A.No. 243 of 1991, the petitioner had taken a stand in the
counter, to the effect that the respondents 1 to 3 cannot question the decree and the execution,since the Municipality brought the property for
auction as per the decree and the decree was fully satisfied. The said stand goes to show that the petitioner is not interested in getting the sale set
aside, so as to enable him to get possession, but to see that the property should be with the purchaser. This is, because, the purchaser is no other
than the mother of his daughter-in-law. A person who had no interest in setting aside the sale, has now filed the present petition. It is also relevant
to mention that he has not taken any steps to get possession from the purchaser, though the sale was set aside on 6.6.1992 itself after the
respondents 1 to 3 disturbed possession of the purchaser, the petitioner had filed this petition on 21.2.1994. Moreover only the respondents 1 to 3
had deposited the amount due in the suit to avoid decree. In the execution the petitioner had not even brought to the notice of the court regarding
the same, especially when the respondents 1 to 3 were not impleaded as parties. From the above facts, by directing the lower court to dispose of
the application on merits, no purpose will be served and any said excise will be only futile. Since prima facie, the petitioner is not have right in the
property and in view of his attitude in this matter as set out, it is for him to approach the civil court to establish his right title and if he established his
rights, he can take possession from the respondents 1 to 3 in accordance with law. The lower court while allowing the petition filed by the
respondents 1 to 3 in E.A.No. 706 of 1993, though the petitioner was not impleaded as a party, the court has directed to deliver possession to the
respondents 1 to 3 prima facie establish their right in the property and they are, also judgment debtors and defendants in the suit.
Though it is well settled that the lower court has to number to application and pass judicial orders, in view of the above, no purpose will be
served, even if the lower court is directed to number the application and pass orders on merits. Hence, the revision filed by the petitioners cannot
be sustained and CRP.No.2109 of 1994 is dismissed. No Costs.
The petitioner in CRP.No. 2754 of 1994 filed the above CRP. to seek order passed for redelivery to the respondents 1 to 4 in application in
E.A.No. 706 of 1993. The petitioner already challenged the order passed in E.A.No.283 of 1991 in C.R.P.NO. 507 of 1983 which was ended
as dismissed. So, he will not in any way be prejudiced by ordering redelivery to the respondents 1 to 3. It cannot be said that the order is
prejudicial one. If it is not prejudicial order to the petitioner, he cannot maintain the CRP. u/s 115 CPC.
Though the learned counsel has submitted that CRP. filed u/s 115, CPC. is maintainable against the order passed in EA.No.706 of 1993, on
the ground that the application in E.A.No. 706 of 1993 has to be construed as one filed u/s 151, CPC. The learned counsel has accepted that if it
is an application filed u/s 144, CPC. he cannot maintain the revision u/s 115, CPC. So, it is clear the petitioner has filed the above revision only
with a view to drag on the proceedings and to given trouble to the respondents 1 to 3. He has no right to contend that the possession should be
given only to the fourth respondent, not to the respondents 1 to 3. The petitioner cannot sustain the revision on any ground. So, CRP.No. 2754 of
1994 is dismissed with cost. Counsel fee is fixed at Rs. 1,500 Rupees one thousand and five hundred only.