The setting aside of an exparte order obliterates all subsequent proceedings, including the delivery of possession, rendering it ineffective and invalid.

1. The plaintiffs in O.S. 19 of 1977 of the Munsiff's Court. Kozhikode are the appellants. The defendants are the respondents. The suit was one for recovery of possession of plaint scheduled property on the strength of title. It was demised by the plaintiffs' mother to the 1st defendant and one Aboobacker on 20-1-1971. Proceedings were taken for recovery of arrears of rent. The plaintiffs' mother filed O.P. (R.C.) 138 of 1975 for eviction. It was allowed. In execution of the above decree in E.P. 767 of 1976. the plaint schedule property was taken delivery of by the plaintiffs. Certified copy of the order in O P.(R.C.) 138 of 1975 dated 16-10-1976 is Ext.Al and the decree is Ext. A2. The delivery report is Ext. A9 dated 6-1-1976. Since there was obstruction in taking delivery. it was effected with the help of police. The 1st defendant trespassed into the plaint schedule property. A police complaint was filed against him. He occupied the house immediately thereafter. The plaintiffs prayed for recovery of possession on the basis that the defendants had trespassed into the plaint schedule house. The defendants contested the suit. They contended that the lease was really in favour of the 1st defendant. Aboobacker was only an employee. In O.P (R.C.) 138 of 1975 the notice was got returned by influencing the Process Server. That resulted in the petition being ordered exparte. In pursuance to the exparte order. the Amin went to the plot to effect delivery. The defendants approached the court for staying the execution. On their application. the Amin was recalled. He returned from the spot without effecting the delivery. But through the influence of the plaintiffs' father the Amin had filed a false delivery report. The defendants are entitled to protection of Act 1 of 1964. The suit is not maintainable.

3. The trial court held that the plea of tenancy need not be decided. that the plaintiffs took delivery of the plaint schedule property. and that the delivery was properly effected. On these premises. the trial court ordered recovery of possession of the building on the strength of title. The suit was decreed. The defendants appealed to the Subordinate Judge's Court. Kozhikode. By judgment dated. 7-2-1980. the learned Subordinate Judge set aside the judgment and decree of the trial court and dismissed the suit. It was held that since the delivery warrant was recalled by the court. it cannot be said that the plaintiffs got an effective. valid and legal delivery. It was also held that there is considerable doubt about the delivery report and it is not a valid one. The plaintiffs have come up in second appeal.

4. The following questions of law we.re formulated as substantial questions of law at the time of admission:

1. Can the delivery effected in this case be considered as ineffective when there is the presumption available under S.114(e) of the Evidence Act and there is nothing to indicate that the order for recall was passed before the delivery was effected?

2. Was the lower appellate court justified in relying on the dictum quoted from 1958 Calcutta Law Journal-293 in a case like this and to say that in all cases delivery of possession was without authority. on the facts obtaining here. wherein delivery has been effected and there is nothing to indicate when the order for recall was passed?

3. Was the lower appellate court justified in holding that there was no effective delivery in the face of Exts. A9 and A10 and other documents?

4. Could order for recalling delivery be effective after delivery was effected?"

5. I heard counsel for the appellants. Mr. V.R. Venkitakrishnan. and counsel for the respondents. Mr. Sreekumar. At the time of hearing of the second appeal. it is common ground that the exparte order passed in O.P. (R.C.) 138 of 1975 was set aside and the petition was restored to file.

The appellants' counsel argued that the lower appellate court was in error in holding that the legal effect of a recall of delivery warrant