Savatha Goundan alias Thambi Goundan vs Pappammal alias Pongiammal and Others

Madhavan Nair, J.—This Civil Miscellaneous Second Appeal arises out of restitution proceedings u/s 144, Civil Procedure Code,

commenced by one Pongiammal, the first defendant in O.S. No. 1040 of 1924, on the file of the Court of the District Munsif of Coimbatore. The

facts of the litigation that led to the present proceedings are clearly set out in the judgment of the Appellate Court and need not therefore be re-

stated for purposes of this Civil Miscellaneous Second Appeal.

The appellant before this Court is a transferee of the properties involved in this suit pendente lite. One Ramaswami Goundan instituted O.S. No.

1040 of 1924 to recover possession of certain properties as reversionary heir to an alleged infant son of Chinna Ramana Goundan. It was

contended that the infant son took the property to the exclusion of his sister Chinnakkal and that the 1st defendant Pongiammal the present

respondent and the step-mother of Chinna Ramana Goundan (now in possession as guardian of Chinnakkal) had no right to the possession of the

same. The learned District Munsif dismissed the suit holding that the existence of the infant son was not proved. This decision was set aside in

Appeal A.S. No. 77 of 1927, Sated 1st August, 1928. As a result of the decision of the Appellate Court the plaintiff obtained possession of the

properties on 28th January, 1929. The present respondent Pongiammal preferred a Second Appeal (S.A. No. 495 of 1929) against the decision

in A.S. No. 77 of 1927 in February, 1929. On 30th May, 1929, Ramaswami Goundan sold the property to the present appellant. S.A. No. 495

of 1929 was compromised between the parties and a compromise decree was passed by the High Court. Ramaswami Goundan the respondent in

the Second Appeal acknowledged the right, title and interest of Chinnakkal and obtained Rs. 3,000 in full settlement of all disputes. It was also

stated in the said decree that Ramaswami Goundan shall be debarred from setting up any title or interest in and shall not disturb the possession and

enjoyment of the suit properties by the said Chinnakkal and her heirs. The Second Appeal having been thus concluded by the compromise decree,

Pongiammal started restitution proceeding u/s 144, CPC which, as I have already stated, has led to this Miscellaneous Second Appeal. Both the

lower Courts held that she was entitled to obtain restitution of the properties and orders were accordingly passed in her favour.

The transferee decree-holder wants to have the order of the lower Courts set aside on two grounds. It is argued that u/s 144, Civil Procedure

Code, Pongiammal, the respondent, is not entitled to apply for restitution in as much as she is not, according to the appellant, entitled to any benefit

under the decree of the High Court. The argument is that what is declared by the compromise decree of the High Court is the right of Chinnakkal

to the properties and not the right of Pongiammal who has absolutely no right of any kind to the properties, she being only the step grand-mother of

Chinnakkal. Of course in the suit she claimed that that she was in possession on behalf of Chinnakkal. To my mind this argument overlooks the real

question that arises for consideration u/s 144, Civil Procedure Code. That question is whether the respondent is entitled to any benefit by the

supersession or reversal of the decree of lower Court by the decreeof the Appellate Court. That is to say, if the lower Court''s decree is reversed

by the appellate Court will the respondent be entitled to any benefit by such reversal. As was pointed out in Hurro Chunder Roy Chowdhry v.

Sooradhonee Debia (1868) B.L.R. Sup. 985 and Shanmugasundara Mudaliar and Others Vs. S. Ratnavelu Mudaliar, , restitution is to be made of

all that the party, against whom the erroneous decree had been enforced, had been deprived by reason of its having been enforced. The question

therefore is: Has Pongiammal been deprived of possession of the property by reason of the enforcement of the appellate decree, the decree which

was superseded by the compromise decree of the High Court. To this there can be only one answer. Before the decree was executed admittedly

she was in possession of the property. Her possession which commenced before the litigation began was continued by the first Court and was

terminated by the execution of the decree of the Appellate Court. She was therefore deprived of possession and the result of the supersession of

the Appellate Court''s decree will be a restoration to Pongiammal of the possession of the property which she was entitled to prior to the

enforcement of the appellate decree. ] This is the benefit which she is entitled to u/s 144, Civil Procedure Code, a benefit which arises by the

supersession of the lower Court''s decree by the decree of the High Court. I have no doubt, therefore, that Pongiammal, the respondent, is entitled

to apply u/s 144, Civil Procedure Code. I may also say that it is not seriously contended that after the decree of the High Court, Ramaswami

Goundan would be entitled to remain in possession of the property nor is it contended that Chinnakkal will not be entitled to enforce this decree

and get possession by taking appropriate proceedings later. There are also additional circumstances to say that the only person entitled to remain in

possession of the property after the supersession by the compromise decree of the High Court is the respondent and the respondent alone. She

can, therefore, apply u/s 144 of the CPC for restitution of the property.

The next argument advanced is that Section 144, Civil Procedure Code, applies only to restitution brought about in consequence of a decree

passed after contest and does not apply to compromise decrees. The learned Counsel for the appellant has not cited any decision in support of this

contention. The contention is opposed to the language of the section itself. So far as this argument is concerned the section requires only a variation

or reversal of the decree of the Court of First Instance and nothing more. It does not say that it must be a variation as a result of the decree passed

after contest. There can be no doubt in this case that the lower Court''s decree was reversed by the compromise decree passed by the High Court.

So, having regard to the words of the section there can be no doubt that the proceedings u/s 144 can be taken in pursuance of compromise

decrees also. It is not necessary to labour this point as the question has been considered very recently by this Court in the decision reported in

Sudarsana Rao v. Gopala Rao (1933) M.W.N. 641 The same argument was put forward before the learned Judge, Lakshmana Rao, J., and it

was overruled with these observations:

Section 144 of the Civil Procedure Code, is not confined to cases where restitution is claimed on the reversal of the decree in first or second

appeal but applies to a case of variance or reversal however that may be effected. The effect of Ex. A, the compromise decree, being to supersede

the decree in, O.S. No. 584 of 1924, the first respondent is entitled to an order for restitution against the second respondent....

For these reasons this argument must be overruled.

In the result the Civil Miscellaneous Second Appeal is dismissed with costs.