The High Court disposed of writ petitions filed to quash orders refusing restitution of possession under Section 144 CPC. The Court held that interim restitution before an appeal is concluded has no legal provision and the petitioner must wait for the appeal to conclude.
The writ petitions stand disposed of without any interim restitution being granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11TH DAY OF AUGUST, 2014
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.6628 OF 2014 (GM-CPC)
c/w WRIT PETITION No.32486 OF 2013
Between:
Sri. Bapakunhi S/o Late Abbas Aged about 58 years R/o Kohinoor Farms Hosmatta, Balya Post & Village Puttur Taluk D.K. – 574 201 … Petitioner
Common
(By Shri S.Rajashekar, Advocate)
And:
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Aged about 28 years
Sl. Nos. 10 to 14 are
Children of Late Ismail
All are r/at Kelaginamane Balanad Village Puttur Taluk, D.K. – 574 201 … Respondents
Common
(Shri S.Vishwajith Shetty, Advocate for respondents 1 and 2 Shri Ravindra Kumar A, Advocate for respondents 3 to 14 in W.P. No.6628/2014
Smt.Swarna Prabhakar, Advocate for respondents 3 to 14 in W.P. No.32486/2013)
W.P.No.6628/2014 is filed under Articles 226 and 227 of Constitution of India praying to quash the order dated 7.1.2014 passed on I.A.No.XI passed in Ex. Case No.38/2012 on the file of the Principal Civil Judge and JMFC at Puttur vide Annexure-A, etc.
W.P.No.32486/2013 is filed under Articles 226 and 227 of Constitution of India praying to quash the order dated 12.7.2013 passed on I.A.No.2 in R.A.No.38/2013 on the file of the Senior Civil Judge and Addl. C.J.M., Puttur, D.K. District and thereby refused to stay the further proceedings in Ex. Case
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No.38/2012 on the file of the Principal Civil Judge and JMFC at Puttur and to stay the delivery of the property in execution case, vide Annexure-A, etc.
These Petitions coming on for Preliminary Hearing this day, the Court made the following:-
ORDER
These petitions are filed in the light of the fact that the
petitioner was said to be in possession of certain property, which was subject matter of a judgment and decree in favour of
the respondents. The respondents having taken out execution,
the first of these petitions was filed. However, during the pendency of the writ petition, the petitioner having been dispossessed, the second of these petitions has been filed.
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interlocutory application seeking restoration of possession. That application having been rejected, the second of these petitions is filed. The petitioner had earlier filed an application seeking stay of dispossession before the lower appellate court. The same having been rejected, the petitioner had approached this court in a writ petition in W.P. No.32486/2013. There was an interim order directing stay of dispossession. In the meanwhile, however, the petitioner having being dispossessed, yet another application was filed before the Executing Court under Section 144 of the Code of Civil Procedure, 1908 seeking restitution. The same having been rejected, the present petition in W.P. No.6628/2014 is filed.
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and decree is affirmed or reversed in an appeal which is before the court below, it cannot be permitted to set the clock back and direct that the petitioner be put back in possession by virtue of the earlier interim order granted by this Court or on the basis of any other legal provision. The interpretation of Section 144 can only lead to a conclusion that if the petitioner succeeds in the pending appeal, then it is open for him to seek such restitution and not before. There is no provision which provides for any such interim restitution, pending an appeal. The petitioner having been dispossessed, would have no other remedy, but to take the appeal to reach its logical conclusion and thereafter seek proper relief. Accordingly, without prejudice to the right of the petitioner, these petitions stand disposed of .
Sd/JUDGE
AHB
3 issues framed by the court
Whether the petitioner is entitled to interim restitution of possession under Section 144 of the CPC before the appeal is concluded.
Whether Section 144 CPC permits setting back the clock to direct restoration of possession while an appeal is pending.
Whether the petitioner has any other remedy besides pursuing the pending appeal after being dispossessed.
Colour shows how this judgement treated each authority
None cited in the operative textReferred
3 provisions across 2 enactments
Bapakunhi
Vishwanatha Rai
Ramananda Rai
Nabeesa
Hajeera
Abdul Hameed
Anand Byrareddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
