Singavarpu Rajaratnam and Another vs Sheik Hasanbi and Another

Devadoss, J.—The first point raised in this appeal is that the petition for restitution of possession by the respondents is incompetent

inasmuch as the application on the ground of dispossession is barred by Order 21, Rule 102, Civil Procedure Code. That rule applies to cases

where a person who gets title from the judgment-debtor is prevented from objecting to the delivery of possession to the judgment-creditor of the

property directed to be delivered to him. In this case the respondents obtained a sale of the judgment-debtor''s property on 23rd July, 1920 when

an application tor execution was pending and the property had been divided but lots had not been cast. The execution petition was dismissed on

the ground that one of the decree-holders had attained majority and that the petition filed by the next friend was not sustainable. A subsequent

application for execution was made but no lots were cast and the items that fell to the share of the decree-holders were not determined.Without

determining the items that ought to go to the decree-holders delivery was ordered and certain items of property in the possession of the

respondents was delivered to the decree-holders. They applied to the Court for restitution of possession on the ground that it was not ascertained

at the time of delivery which items fell to the decree-holders'' share. This contention was upheld by the District Munsif and he ordered restitution of

the property. On appeal the Subordinate Judge of Bezwada upheld the order of the District Munsif

Mr. Markandeyulu''s objection to the order is that it is not competent for the transferee of the judgment-debtor''s right-in the property to file

such an application. It is conceded that the judgment-debtor himself could file an application if any item of property is wrongly delivered to the

decree-holder. The complaint in this case is that before determining what item fell to the share of the decree-holder particular items of property in

the possession of the respondents were delivered. Such a contention could have been put forward by the judgment-debtor, and it is difficult to see

how the transferee from the judgment-debtor pending execution could not put forward the same contention. This application is not one under

Order 21, Rule 99 or Rule 101, but one u/s 47. Though wrongly Rules 99 and 101 are mentioned in the petition we have to look at the substance

of the petition and not merely at the heading. Mr. Markandeyulu relies upon Kanakasabai Mudaliar v. Rajagopal Naidu (1917) 42 I C 523 and

Rev. V.C.L. Neilson v. Sada-nanda Swamiar (1910) 8 I C 805 in support of his contention. Those cases have no application to the present, for,

there the application was made not on the ground that the property was wrongly delivered but on the ground that the property was not liable to be

delivered as the applicants were in possession. Their possession was only the possession of the judgment-debtor and therefore they could not

apply for restitution under Rule 99 or Rule 101. The application of the respondents therefore was not incompetent.

The next contention raised by Mr. Markandeyulu is that notice was served on the judgment-debtors and they did not object to the delivery of

the property and therefore they cannot question the delivery after it has taken place. It does not appear that notice was issued to the respondents

and the judgment-debtor that the items now in dispute were going to be delivered to the decree-holder. Even if such a notice was issued it would

not be competent to the Court to deliver certain items of property without determining whether those items fell to the share of the decree-holder. In

a case where a division of property has to be made and lots cast before the share of each decree-holder could be ascertained, it would not be

proper to order delivery of particular items to the decree-holder. Therefore the service of notice in this case even if it did mention particular items

would not be proper notice as required by law, and it would not prevent the respondents from getting the relief available to them u/s 47. In

Vallabha Valia Raja v. Manakata Kovilakath (1924) 86 I C 947 and Jainulabdin Sahhib Vs. Krishna Chettiar, it was held that a judgment-

debtor''s remedy is u/s 47 when property was wrongly delivered or some item of property to which the decree-holder was not entitled was

wrongly taken possession from the judgment-debtor.

In the result the appeal fails and is dismissed with costs.