These Civil Miscellaneous Second Appeals arise out of two applications for restitution.

The appellants claim through one Bhandari who filed two suits O.S.Nos.236 and 237 of 1937 for recovery of possession of two parcels of land which he alleged were held on chalgeni or terminable leases by Juam Souza and Thomas Souza. The suits were decreed on the 30th August, 1938. On the 25th October, 1938, one Pedru Souza, who will hereafter be referred to as Pedru, filed O.S.No.505 of 1938 against Bhandari praying for a declaration that the properties involved in both O.S.Nos.236 and 237 of 1937 were his mulgeni holdings, and that the decrees in those two suits were not binding on him and praying also that Bhandari should be restrained by an injunction from executing the decrees and disturbing his possession.

In R.E.A.Nos.786 and 787 of 1938, Bhandari applied for delivery of possession of both the properties alleging obstruction by Pedru which he sought removal of. The applications were dismissed on the ground that the suit filed by Pedru for establishing his right to those properties was still pending. O.S.No.505 of 1938 was dismissed on the 21st of July, 1941. Relying on that dismissal Bhandari filed two fresh applications R.E.A.Nos.495 and 496 of 1942 which were ordered under Order 21, rule 98 of the Civil Procedure Code on the 4th August, 1942. Meanwhile, Pedru filed an appeal in the Court of the Subordinate Judge of Mangalore against the decree of dismissal in O.S.No.505 of 1938 and this appeal was allowed in his favour on the 16th of March, 1944. It is admitted that Bhandari took possession of the properties in pursuance of the orders in R.E.A.Nos.495 and 496 of 1942. Pedru sought restitution in R.E.Ps.Nos.356 and 357 of 1944 and they have led to the present second appeals, restitution having been ordered by both the Courts below.

Two points have been raised on behalf of the appellants by their learned counsel, Mr. Srinivasagopalachari. Firstly it is argued that as Pedru filed no suits as contemplated by Order 21, rule 103 of the Civil Procedure Code within one year of the orders dated 4th August, 1942, these orders must be regarded as conclusive and Pedru cannot put forward any title inconsistent with them. Reliance is placed in support of this argument on three decisions which I shall immediately proceed to deal with. Krishna Rao v. Lakshmana Shanbhogue1, which is the first of the cases cited arose under the Civil Procedure Code of 1859, which contained provisions almost identical with the relevant provisions of the present Code. The defeated claimant in that case did not file a suit within one year of the claim order against him. The purchaser of the property in execution of the decree however filed a suit for recovery of possession of the property within one year from the date of the claim order. The defeated claimant was a defendant in that suit and sought to contest the order which had been passed against him. It was held that he should not be permitted to do so and it was observed that the order was and was intended to be a summary declaration of want of title in the objector which declaration would amount to a final decision of the question between the parties if the party aggrieved did not take the course indicated by the institution of a suit to supersede it. Kumaram Uni Achan v. Kunhikrishnan Nair2 is a similar case in which also the contention was that the defeated claimant could as a defendant raise the question of title without indulging in what was described as a futility namely the formality of a fresh suit. The argument was rejected and a Bench of this Court again held that the fact that there was a pending suit regarding the title to the property and that the defendant had filed a written statement in it claiming title did not absolve him from the obligation of filing a suit under Order 21, rule 103 of the Code if he intended to contest the order under Order 21, rule 101.

It would be noticed that in both these c