Decided on January 07,1901



- (1.) IN this case the appellant as lessee from a former Zamorin sued for possession of property in the hands of a tenant who held under that Zamorin. The suit was instituted after the death of that Zamorin, and the contention of the succeeding Zamorin, who with the tenant was a defendant in the suit, was that the lease in plaintiff's favour was not binding on him, This contention was upheld by the High Court in Manavikrama V/s. Vaithi Pattar Second Appeal No. 978 of 1895 (unreported), and the decree of the lower Appellate Court awarding possession to the plaintiff was reversed and the suit dismissed. Before the decree of the High Court was passed the decree at the first Court had been executed and the tenant had given up possession of the land and received compensation for improvements from the plaintiff.
(2.) ALTHOUGH the appeal was by the Zamorin only, we must take it that the suit was dismissed not only as against the Zamorin but also as against the tenant. Consequently the tenant was entitled to recover possession with mesne profits. His right to mesne profits was attached by the respondent in execution of a decree held against him by the first respondent. The first respondent applied under Section 273 (b), Civil P. C., to recover mesne profits by way of execution and his application was granted. Appellant contends that even assuming that he was liable to the tenant for the mesne profits claimed, the right to recover them by way of restitution is not a decree for money within the meaning of Section 273, Code of Civil Procedure. We think that this contention is well founded. The right to restitution in a case like this may, notwithstanding Section 583, Civil P. C., be enforced by suit. Shama Purshad Roy Chowdery V/s. Hurro Purshad Roy Chowdery 10 M.I.A. 203, Kaliansundram v. Egnavedeswara I.L.R. 11 Mad. 261, Narayana V/s. Narayana I.L.R. 13 Mad. 437, and Dorosami Ayyar V/s. Annasami Ayyar I.L.R. 23 Mad. 306, or it may be enforced by summary process in execution under Section 533. If a summary order awarding mesne profits had been made before the attachment under which the first respondent claimed, it may be that such an order would be a decree within the meaning of Section 273, Civil P. C., that before such an order is made it is difficult to hold that the right to restitution is property which is a decree within the meaning of Section 273. To hold this would be inconsistent with the conclusion that the right may be enforced by suit. The language of Section 273 seems to apply only to cases where the right attached is a right expressly settled by the decree and not a right arising from the decree by way of restitution. In this view we must hold that the first respondent was not entitled to apply under Section 273, Civil P. C.. We must therefore set aside the order of the lower Appellate Court and restore that of the District Munsif with costs in this and in the lower Appellate Court.;

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