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1893 Supreme(Mad) 83
IN THE HIGH COURT OF MARAS
M Aiyar
P.V. Sankaran Nambudripad And
Versus
Valia Konikaledathil Pangi Achen
Decided On : 21 August, 1893
Entitlement to claim restitution under Section 583 of the Code of Civil Procedure
Headnote:
Restitution - Civil Procedure - The appellant was not a party to the original suit and therefore not entitled to claim restitution under Section 583 of the Code of Civil Procedure. His proper remedy was a proceeding under Section 332 of the Code of Civil Procedure and not by way of restitution.
Fact of the Case:
The appellant was not a party to the original suit and sought restitution under Section 583 of the Code of Civil Procedure. The court held that he was not entitled to claim restitution and that his proper remedy was a proceeding under Section 332 of the Code of Civil Procedure.
Finding of the Court:
The court found that the appellant was not entitled to claim restitution under Section 583 of the Code of Civil Procedure and that his proper remedy was a proceeding under Section 332 of the Code of Civil Procedure. The appeal was dismissed with costs.
Issues: Entitlement to claim restitution under Section 583 of the Code of Civil Procedure
Ratio Decidendi: The appellant was not a party to the original suit and therefore not entitled to claim restitution under Section 583 of the Code of Civil Procedure. His proper remedy was a proceeding under Section 332 of the Code of Civil Procedure and not by way of restitution.
Final Decision: The appeal was dismissed with costs.
Muthusami Aiyar, J.
1. The facts of the case are fully stated by the late District Judge in his order in Civil Miscellaneous Appeals Nos. 525 and 527 of 1890 dated the 16th February 1891. The decree of which execution was held by him to be barred, was the one passed in Original Suit No. 5 of 1882 and to this suit the 1st appellant before me was not a party. The judge is therefore right in holding that the appellant is not at liberty to claim restitution under Section 583 of the Code of Civil Procedure. The Subordinate Judge also acted properly in striking out his name from the application for execution filed in Original Suit No. 5 of 1882. His real position was that of a purchaser in possession who had bought the land forming the subject-matter of the suit of 1882 in execution of the decree in Original Suit No. 4 of 1881 and if he was dispossessed, his proper remedy was a proceeding under Section 332 of the Code of Civil Procedure and not by way of restitution. This appeal must fail and is dismissed with costs.
