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Madras High Court
VENKATARAMAN
Sundaramurthi Gramani - Appellant
Versus
Kesava Naicker - Respondent
Decided On : 03/28/1972
RESTITUTION - SECTION 144, CIVIL P. C. - APPLICABILITY - AUCTION PURCHASER - ENTITLED TO UNDIVIDED HALF SHARE - DELIVERY OF ENTIRETY OF PROPERTIES - APPELLANT DID NOT PUT FORTH OBJECTION - APPELLANT DISENTITLED TO REMEDY OF RESTITUTION.
Fact of the Case:
Appellant filed a claim petition under Order XXI, Rule 58, Civil P. C. contending that the properties were the joint family properties of himself and his brother Munuswami Gramani, that there had been no division between them, that he (Sundaramurthi) was entitled to an undivided half share and that his undivided half share should be released from attachment. This claim petition was dismissed. Appellant filed a suit under Order XXI, Rule 63, Civil P. C. The suit was dismissed by the learned District Munsif. Appellant carried the matter in appeal. The appeal was allowed by the learned District Judge. The properties were purchased in court auction by one Ramaswami Chetti and he also took delivery, through the executing Court of the entire properties without any objection being raised by Sundaramurthi. Appellant filed EA. 37 of 1966 in O. S. 72 of 1959 under Sec. 144, Civil P. C. claiming restitution by recovery of possession of the entire properties from Ramaswami Chetti.
Finding of the Court:
The court held that the appellant was not entitled to the relief under Section 144, Civil P. C., because he did not put forth any objection in the application which the auction purchaser must have filed in the executing court in O. S. 255 of 1957 for delivery of possession as a result of his purchase. The court further held that the appellant lost his right to invoke the doctrine of restitution under Section 144, Civil P. C. since he did not put forth his objection to the delivery of the entirety of the properties in the execution stage.
Issues: Whether the appellant is entitled to the relief under Section 144, Civil P. C.
Ratio Decidendi: The court held that the appellant was not entitled to the relief under Section 144, Civil P. C., because he did not put forth any objection in the application which the auction purchaser must have filed in the executing court in O. S. 255 of 1957 for delivery of possession as a result of his purchase. The court further held that the appellant lost his right to invoke the doctrine of restitution under Section 144, Civil P. C. since he did not put forth his objection to the delivery of the entirety of the properties in the execution stage.
Final Decision: The appeal was dismissed.
2. Notwithstanding the claim suit and the appeal, the execution in O. S. No. 255 of 1957 proceeded. The properties were purchased in court auction by one Ramaswami Chetti and he also took delivery, through the executing Court of the entire properties without any objection being raised by Sundaramurthi. Sundaramurthi, however, filed EA. 37 of 1966 in O. S. 72 of 1959 under Sec. 144, Civil P. C. claiming restitution by recovery of possession of the entire properties from Ramaswami Chetti. In this application, he impleaded Ramaswami Chetti as the third respondent, the first two respondents being Kesavan Naicker and Munuswami Gramani.
3. The application was resisted by Ramaswami Chetti. He contended that the applicant had sought release only of his undivided half share, that that claim alone had been recognised and that in order to recover that undivided half share he must file a separate suit for partition. This contention was, in effect, accepted by the learned District Munsif, who tried E. A. 37 of 1966. The learned District Munsif pointed out that throughout in the claim petition and the subsequent suit. Sundaramurthi claimed only an undivided half share and release thereof and since he had established that right, he would be entitled to symbolical possession of his half share, if otherwise he was entitled to maintain the application in O. S. 72 of 1959. The learned District Munsif, however, thought that the application should have been filed in O. S. 255 of 1957. In that view, he dismissed the application.
4. Sundaramurthi preferred an appeal, C. M. A. No. 57 of 1966, in the District Court, Chingleput. The learned District Judge, agreeing with the learned District Munsif, observed that in the claim petition and in the claim suit, the petitioner Sundaramurthi had prayed only for release of his undivided half share and that so far as the other half share was concerned, the auction-purchaser had acquired valid title thereto and therefore Sundaramurthi could not recover possession of the entirety of the properties. In that view, he dismissed the appeal. Hence this further appeal by Sundaramurthi.
5. Sri Venkatesan, in an able and strenuous argument for the appellant, contends that the courts below have missed the point that as a matter of substantive law, the auction-purchaser, who acquired a title to only a half share of the coparcener Munuswami Gramani, was not entitled to recover possession of the entire properties and was only entitled t
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