KANAKASABAI MUDALIAR Vs. RAJAGOPAL NAIDU

JUDGEMENT

(1.) The appellant Kanakasabai Mudaliar and some other persons were in possession of the properties in dispute claiming to be testamentary guardians under a Will executed by the father of one Ponnusawmi Mudali and two minors. On an application made under the Guardian and Wards Act by Ponnuswami in which he alleged that the properties were ancestral and belonged to the joint family and any testamentary disposition of his father could not, therefore, operate in respect of them, the District Judge removed Kanakasabai from guardianship and directed possession of the properties to be given to Ponnuswami and Ponnuswami accordingly was put in possession in 1909, On Kanakasabai appealing against the order of the District Judge, the High Court allowed the appeal holding that the properties were ancestral and the possession of Kanakasabai was that of a trespasser and, therefore, the application of Ponnuswami under the Guardian and Wards Act was incompetent. The order of the District Judge in the latter s favour was set aside. This was on 3rd January 1913. But in the meantime, i. e., on 16th March 1911 Ponnuswami then being in possession under the order of the District Judge, had executed a mortgage in favour of the respondents in this appeal of the land in dispute. The latter instituted a suit on the mortgage in 1913, obtained a decree and bought the property at Court-auction and obtained delivery of possession on 17th January 1915.

(2.) On the 26th January 1915 the appellant Kanakasabai obtained an order for restoration of possession in accordance with the order of the High Court and delivery of possession was made to him on 27th September 1915 in dispossession of the respondents. The latter then filed the present petition asking that the property may be restored to their possession and the District Judge has granted this application.

(3.) The question is, does Order XXI, Rule 101, which directs that a bona fide claimant who has been dispossessed in execution1 shall be restored to possession, apply in respondents favour. The answer is furnished by Rule 102, which expressly lays down that nothing in Rule 101 shall be applicable to a transferee pendente lite. The respondent obtained his mortgage pendente lite and his purchase of the property at Court auction in execution of the decree on that mortgage would not vest him with a different character. Section 144, Civil Procedure Code, which states that the Court shall cause restitution to be made, gives the Court no discretion and it has been held in Jamini Nath Roy v. Dharma Dass Sur 83 C. 857: 4 C. L. J. 192. that when a party is bound to restore possession his legal representatives or assigns are equally liable. The appeal must, therefore, be allowed and the order of the District Judge will be "set aside. We regret the result as the appellant is a mere trespasser, but the previous order of the High Court against Ponnuswami has to be carried out and the petitioner who stands in his shoes cannot under the law claim a higher right to possession. He has other remedies. In the circumstance each party will bear his own costs of this appeal and in the lower Court. No order is necessary in the civil revision petition.