R. BAYAPU REDDY, J.

( 1 ) THIS revision is filed by the petitioner in EA 638 of 1988 in OS 364 of 1982 on the file of the I Additional Munsif Magistrate, Guntur questioning the impugned orders dated 3-7-1989 dismissing the said petition which was filed under Sections 144 and 151 CPC seeking restitution of the suit property.

( 2 ) THE respondent herein, who is the plaintiff in OS 364 of 1982, had filed the said suit contending that the lease granted under a registered deed in his favour by the defendant is an usufructuary mortgage and therefore, he is entitled for redemption of mortgage and for recovery of possession and profits. During the pendency of the suit, plaintiff filed IA 1575 of 1983 for temporary injunction against the defendant pending disposal of the suit and the said petition was allowed granting such interim injunction. The defendant filed appeal against that order and the said appeal was dismissed. Subsequently, the suit was tried by the trial Court and it was dismissed. Thereupon, the plaintiff filed AS 146 of 1986 and the said first appeal also was dismissed. Thereupon, the plaintiff filed SA 779 of 1987 in the High Court. After the disposal of AS 146 of 1986, the defendant filed EA 638 of 1988 under Sections 144 and 151 CPC seeking restitution of the suit property from the plaintiff, contending that on account of the temporary injunction orders passed by the trial Court during the pendency of the suit, the plaintiff dispossessed him (defendant) taking advantage of such interim injunction and he continues to be in possession and enjoyment of the same unlawfully and that inasmuch as the suit was finally dismissed and as the first appeal filed by him was also dismissed, the defendant is entitled for restitution of the property from the plaintiff. The plaintiff opposed the said petition contending that there is no order passed by the Court directing delivery of possession of the property to him and such possession was not taken by him through Court and as such Section 144 CPC has no application to the present case. The learned District Munsif, on the basis of the evidence adduced before him, dismissed the petition holding that the plaintiff, who is said to be the landlord of the defendant, is in possession of the property as such landlord and the defendant is claiming possession as tenant; that the decree passed in the suit has not become final as Second Appeal filed by the plaintiff is still pending in the High Court and that the defendant can seek his remedy only under the provisions of the Tenancy Act but not under Section 144 CPC. Questioning such orders, the present revision is filed.

( 3 ) HEARD the Counsel.

( 4 ) THE only point that arises for consideration in this revision is whether the petitioner (Defendant) is entitled for restitution of the suit property under Section 144 or under Section 151 CPC and whether mere are any valid reasons to interfere with the orders of the lower Court?

( 5 ) IT is seen from the facts of this case that the suit was filed by the plaintiff for redemption of the mortgage and for recovery of possession of the property, contending that the registered deed executed in favour of the defendant is only in the nature of an usufructuary mortgage and not a lease deed. He also filed IA No, 1575 of 1982 for interim injunction pending disposal of the suit and such interim injunction was granted by the trial Court and such orders of interim injunction were confirmed by the appellate Court in the Civil Miscellaneous Appeal filed against the orders of temporary injunction. But subsequently, the suit was dismissed by the trial Court and the first appeal filed by the plaintiff was also dismissed. Subsequently the plaintiff filed SA No. 779 of 1987 which is also since dismissed on 25-3-1994 thereby confirming the decree and judgment of the trial Court passed in the suit. After the first appeal was dismissed and when the second appeal was still pending in the High Court, the defendant filed EA 6

Click Here to Read the rest of this document