Sevatha Goundan vs Pappammal 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 1st defendant in O.S. No. 1010 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

restated 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 dated August 1, 1928. As a result of the decision of the Appellate Court the plaintiff obtained possession of the

properties on January 28, 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 May 30, 1929, Ramaswami Goundan sold the property to the present appellant. Second Appeal

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 proceedings u/s 114, 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, CPC

Pongiammal, the respondent, is not entitled to apply for restitution inasmuch 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 Cinnakkal 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-grandmother of

Chhinnakkal. Of course in the suit she claimed 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 the lower Court by the decree of 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 Chander Roy

Chowdhry v. Sooradhonee Debia B.L.R. Sup. Vol. 985 : 9 W.R. 402. (See 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 endorsement 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. These 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, CPC applies only to restitution brought about in consequence of a decree passed after contest

and does not apply to compromise decree. 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 Sudersana 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 1921, the 1st 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.