VASUDEVAN NAMBUDIRI Vs. NARAYANAN NAMBUDIRI
LAWS(KER)-1963-6-19
HIGH COURT OF KERALA
Decided on June 17,1963

Vasudevan Nambudiri Appellant
VERSUS
NARAYANAN NAMBUDIRI Respondents


Referred Judgements :-

RAJ RAGHABAR SINGH V. JAI INDRA BAHADUR SINGH [REFERRED TO]
PHANI BHUSAN DHAR V. ANUKUL MUKHERJEE [REFERRED TO]
HURMAT ALI V. MATLIH ALI [REFERRED TO]
RAJJABALI KHAN TALUKDAR VS. FAKU BIBI [REFERRED TO]


JUDGEMENT

S.VELU PILLAI,J. - (1.)THE question for decision in second appeal relates to the liability of Narayanan Nambudiri,the first respondent,for mesne profits by way of restitution upon restoration of the concerned property to Gopalan Nair,the second respondent.Gopalan Nair,the petitioner in restitution,was the purchaser of the kanam right in the property and came into possession.On the 7th August 1948,he was dispossessed in execution of the decree in O.S.No.148 of 1947,which was obtained by one Appunni and Achuthan and to which he was also a party.Appunni and Achuthan surrendered the property to their mortgagor one Vasudevan Nambudiri,who was also a party to that decree and who is the appellant before me.In the meantime,Gopalan Nair had preferred a second appeal to the Madras High Court in which he succeeded and in due course he was restored to possession on the 26th June 1955,on an application in which he had also prayed for the realisation of mesne profits for the period commencing from the 7th August 1948,and ending with the 26th June 1955,when he was out of possession.Vamdevan Nambudiri had assigned his rights in the property pendente lite to Narayanan Nambudiri aforesaid on the 17th March 1950.The first court held that for the years 1947 -48,1948 -49 Appunni and Achuthan,for the years 1949 -50 Vasudevan Nambudiri,and for the years 1950 -51 till 1954 -55,Narayanan Nambudiri,were answerable for mesne profits.Narayanan Nambudiri took the matter,so far as his liability was concerned,on appeal to the Subordinate judge,Ottapalam,in which he was exonerated from liability on the ground,that being no party to the decree in O.S.No.148 of 1947,no restitu­tion proceedings would lie against him.It is this point that arises for consideration in second appeal.
(2.)BEING an assignee pendente lite ,Narayanan Nambudiri was a representative in interest of Vasudevan Nambudiri within the meaning of section 47 of the Civil Procedure Code.There is no reason to construe section 144 C.P.C.differently.In support of this,the observations of the Privy Council in Raj Raghabar Singh v. Jai Indra Bahadur Singh A.I.R.1919 P.O.55 may be quoted:" "Sections 47 and 144 provide for the decision of questions relating to the execution,discharge or satisfaction of the decree,and for restitution including the payment of mesne profits when a decree has been varied 'or reversed;and they enact that any such questions shall be determined in the suit and not by a fresh suit.But these sections apply only to the parties or the representatives of the original parties,and do not apply to sureties." This would imply that section 144 C.P.C.would apply to representatives also as section 47.Section 144 must be construed as widely its terms would admit of and there being no restriction in the language,I am of the opinion that it would apply to the representative in interest of a party. In Hurmat Ali v. Matlih Ali A.I.R.1952 Assam 111 ,the court held on an examination of decided cases on the point,that the preponderance of authority is in favour of the above view.A different view was held in Phani Bhusan Dhar v. Anukul Mukherjee A.I.R.1929 Pal.590 on which the Subordinate Judge has relied;in this,the party to the decree created a lease pendente lite and the court held that while the lessees may be evicted in execution of the decree against the lessor the claim for mesne profits could not be pressed against the former.The court gave no reason but observed simply that the position taken by respondents 2 and 3,the lessees,is quite sound.In Rajjabali Khan Talukdar v. Faku Bibi A.I.R.1932 Cal.29 .,after extracting the passage in Raj Raghubar Singh v. Jai Indra Bahadur Singh cited above,it was held that the defendants who were in possession,were strangers to the litigation and were in no sense legal representatives of the transferor and therefore restitution proceedings would not lie against them.This decision was not accepted as laying down the correct law in the Assam case cited above.
I am of the opinion,that on the terms of section 144,there is no Compelling reason why restitution proceedings,if maintainable against a party,should not be carried through against his transferee who is bound by the decree as himself.He may not be a legal representative as defined in the C.P.C .,but he is a representative in interest.The decision of the Supreme Court in Lal Bhagwant Singh v Sri Kishen Das A.I.R.1953 S.C.136 to which the Subordinate Judge has adverted,no doubt uses the expression "party on record "incidentally,but the case did not raise the precise point for consideration nor was it decided. I am of the opinion that the view of the Subordinate;Judge is erroneous;his;judgment is set aside and the order of the first court is restored.The second appeal is allowed the first respondent in this second appeal will pay the costs of the appellant in this Court and in the lower appellate court.

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