JUDGMENT

Satish Chandra, J. - This is a judgment-debtor appeal. It arises out of restitution proceedings.

2. Narain Das, the respondent, filed a suit (No. 29 of 1957) for possession over a house. To this suit he impleaded the appellant Mintoo Lal and one Jugal Kishore. He alleged that the house in dispute belonged jointly to him and Jugal Kishore defendant No. 2. Jugal Kishore had sold the house to Narain Das without any right. He claimed possession over the entire house and in the alternative he claimed possession over his half share of the house. The suit was contested by the transferee, namely Mintoo Lal, on the ground inter alia that Jugal Kishore had sold only the site of the land and that he made the constructions over it at his own expense of about Rs. 6,000/-. He also pleaded that since the suit was for possession over the house, it was under valued and the court-fee paid was insufficient. The plaintiff Narain Das thereupon applied for amendment of the1 plaint by an application dated 17-5-1951. He prayed that the word "house" be deleted from the relief clause of the plaint and be substituted by the words "site of the Khandhar." He also prayed for the necessary amendments in other parts o the plaint. The value of the site involved in the suit was determined a Rs. 3,000/-. The plaintiff accordingly valued the suit at Rs. 3,000/- and paid court-fee accordingly. The suit therefore, was for possession of the site alone. The trial court decreed the suit on 20-2-1953 for possession over half share of the house. It re fused the relief for demolition of the construction on the ground that without a partition the plaintiff could not claim demolition of any specific half portion of the house.

3. In due course the plaintiff Narain Das put the decree in execution. Execution case No. 181 of 1954 was for recovery of the costs of the suit which amounted to Rs. 539/13/-. This was sought to be recovered by attachment and sale of the half share of the judgment debtor Mintoo Lal in the house and its site. The decree holder himself purchased the half share. Execution case No. 415 of 1955 related to the decree for possession over the half share in the house. In fructification of both these executions, the plaintiff-decree-holder Mintoo Lal, obtained actual possession over the entire house on 19-10-1955.

4. Narain Das, the judgment debtor, made an application for amendment of the decree on 4-11-1955. This application was under Sec. 152, C. P. C. It stated that after the amendment of the plaint the suit related to the site of the house alone and not to the house. The decree has, under some mistake, been passed for a half share of the house. It requested correction so as to conform the decree to the relief claimed in the plaint. It was prayed that the decree be corrected so as to be for a half share in the site only. The trial Court rejected the application. Mintoo Lal filed a revision in this Court and succeeded. By the judgment dated 6-1-1958 this Court allowed the application for rectification and directed that the judgment and the decree shall both be corrected so as to relate to a half share in the site alone. Shortly Allahabad High Court thereafter the judgment debtor applied for restitution. He prayed that possession of the house be restored to him. This application was contested by the plaintiff decree-holder Narain Das on various grounds. He urged that in view of the decree and in view of the result of the execution of the decree for costs, he, that is to say, Narain Das, has become the owner of the entire site and of a half share in the house. The judgment-debtor Mintoo Lal having no interest in the site is at best entitled to remove the materials of the half portion of the house belonging to him. In this situation he is not entitled to possession of any specific part of the house, much less to possession over the entire house by dispossession of the decree holder. The trial Court recalled the objections. It held that the scope and in