IMPORTANT POINT
In restitution proceedings, the High Court was not right in protecting the lease created in favour of respondent by the DH auction purchaser at the sale in execution of the ex-parte decree which was subsequently set aside.

JUDGMENT

Mrs. Sujata V. Manohar, J.-The property in dispute originally belonged to one Padanattil Chengottu Kunnath Tarwad. One Mohammed Haji filed a suit being suit No. 397 of 1941 for recovery of possession of some properties held by this Tarwad on tenancy rights. On 12th of September, 1942 an ex parte decree was passed in the suit in favour of Mohammed Haji for recovery of possession of the lease-hold property and also for arrears of rent. The ex parte decree was executed. A number of items of properties belonging to the Tarwad including the suit properties were attached and sold in court auction held on 18.3.45 in execution proceedings. The suit property herein (one acre and ten cents of agricultural land) was purchased by the decree-holder Mohammed Haji in the Court auction. The delivery of the suit property was given to the decree-holder auction purchaser on 12.3.1946 as per order on E.A. 389 of 1946.

2. After purchase the suit property was given on lease by Mohammed Haji to one Raghavan Nair on 2.5.46. Raghavan Nair in turn sold his rights in the suit property to one Avvappan who is turn, sold his rights to one Raman Menon. Raman Menon sold his rights in the said property on 3.10.1950 in favour of the respondent, P.K. Abdulla.

3. One of the members of the Tarwad challenged the ex parte decree in OS No. 397 of 1941 by filing an application under Order IX, Rule 13 of the Civil Procedure Code. The trial court declined to set aside the ex parte decree. The order of the trial court was reversed by the appellate Court. Ultimately the High Court by its judgment and order dated 29.1.1958 set aside the ex parte decree.

4. After the ex parte decree was set aside, proceedings by way of restitution were started by the first defendant and Karnavan of the Tarwad by filing E.P. 29 of 1959. All the properties which had been taken possession of by Mohammed Haji in execution of the ex parte decree and of which restitution was sought were set out in a schedule in the proceedings for restitution. Item No. 6 in E.P. 29 of 1959 was the suit property. E.P. 29 of 1959 had originally contained a prayer for only symbolic re-delivery of the properties which had been taken possession of in execution by Mohammed Haji. But the application was subsequently amended and actual delivery was asked for.

5. This restitution application was allowed and the properties were re-delivered pursuant to these restitution proceedings. Such re-delivery of the suit property is evidenced by Exh. 82 dated 5.4.1966. Exhibits A25 and A27 are a report and account of the Amin who re-delivered possession of the suit property to the Tarwad.

6. The respondent, P.K. Abdulla, thereupon filed suit being OS 288 of 1966 contending that he was not evicted from the suit property pursuant to the restitution proceedings and there was no re-delivery of the suit property to the Tarwad. The prayed for an injunction to restrain the defendant from interfering with his possession of the property.

7. The trial court dismissed his suit holding that there was a proper re-delivery of the property and the Tarwad got back the property. In appeal the trial court s judgment was confirmed. A second appeal was filed by the respondent P.K. Abdulla before the Kerala High Court. He also filed a petition for amending the plaint to incorporate a prayer for a declaration of his title and for recovery of possession of the suit property. This prayer was granted and the judgment and decree of the courts below was set aside and the matter was remanded to the trial court permitting the respondent to amend the plaint as indicated in the judgment and directing the trial court to dispose of the suit in accordance with law and in the light of the findings and observations in the High Court s judgment.

8. After remand the trial court found that the Tarwad had obtained possession of the property pursuant to the restitution proceedings. It also found that the respondent who was the plaintiff therein had established his title