P.Chatterjee, J. - (1.) This Second Miscellaneous Appeal is on behalf of the landlord, who instituted the suit for possession after a notice to quit and who subsequently got a decree for possession but which has thereafter been set aside under Order 9, Rule 13 of the Code. The defendant thereafter applied under Section 144 of the Code for restitution. The application of the defendant has been allowed by both the Courts below and hence the present appeal by the landlord plaintiff -- the objector to the petition under Section 144 of the Code.
(2.) The plaintiff instituted his ejectment suit on 5-1-1956. On 19th April 1956, an ex parte decree was passed. On 11th March, 1957, possession was delivered to the decree-holder, but defendant immediately started proceedings under Order 9, Rule 13 of the Code for setting aside the ex parte decree and the ex parte decree was set aside; against that order, certain proceedings were pending in this High Court and in the meantime, on the 8th June, 1958, under the order of the Calcutta Corporation one of the structures which was in a dilapidated condition, was demolished.
(3.) The defendant applied for restitution under Section 144 of the Code after the ex parte decree was set aside. The objection of the plaintiff landlord was that as the Corporation demolished one of the structures there has been a frustration of the contract within the meaning of Section 56 of the Indian Contract Act and, therefore, no restitution is possible. This objection was over-ruled by both the Courts below and hence the present appeal.;