SHEORATAN KURMI AND AFTER HIS DEATH AKHJI DEVI Vs. KALICHARAN RAM

JUDGEMENT

(1.) This appeal arises out of a restitution proceeding under Section 144 of the Code of Civil Procedure.

(2.) The appellants had obtained a decree in a title suit against the respondents; and in execution of that decree they had taken possession of the property in suit. The decree was, however, set aside ultimately by a superior court; and, therefore, the respondents made an application under Section 144, Code of Civil Procedure, for restitution, that is, for getting back possession of the suit property.

(3.) The application under Section 144, Code of Civil Procedure, was registered as Miscellaneous Case No. 5 of 1962 in the court of the first Additional Munsif at Gaya on the 16th June, 1962. After service of notice on the opposite party, who are the appellants in this Court, they appeared and applied for time on the 22nd September, 1962. on the ground that they had to obtain some documents. Thereafter, on two subsequent dates also the appellants applied for time in the case though on all the three dates the respondents had filed hazri. On the 11th December, 1962, both parties filed hazri and the case was taken up, but it had to be adjourned on account of a petition of the respondents to call for the records of the execution case in which possession had been delivered to the appellants decree-holders. The record was, however, not received from the District Judge of Gaya, and the last order dated the 13th March. 1963, reads as follows:-- "Requisition received with report. Both parties file hazri. Case called out. Pleader for the O. P. is ready. Pleader for applicant does not turn up nor responds on repeated calls. It is 2.30 P. M. Let the misc. case be dismissed for default."