JUDGMENT

This appeal by special leave arises out of the judgment and decree in S. A. No. 147/73, Kerala High Court, dated April 1, 1977: (reported in 1977 Ker LT 570. The Division Bench held that transferee executing court is not "the Court of first instance" and accordingly set aside the order of the courts below and dismissed the Petition filed under S. 144 CPC for restitution.

2. The respondent-plaintiff filed a suit O.S. No. 61/62 for declaration that the gift deed executed by Muthukoya Thangal, defendant No. 1 in favour of his wife and children on July 27, 1960 was null and void. The suit was transferred to the Administrators Court (Subordinate Judge), which was ultimately decreed on April 4, 1965. The suit thereafter was dismissed by the appellate court on May 1, 1970 and was confirmed by the High Court on November 3, 1971. The decree in the meanwhile was transmitted for execution and in execution thereof possession was delivered from the appellant to the respondents. After the proceedings terminated in his favour, the appellant filed an application under S. 144 C.P.C. for restitution in the Court of the District Munsif at Androth to which the decree for execution was transmitt