Judgment :- 1. This is a case arising from the Androth Island in the Centrally administered territory of Lakshadweep. It is an unfortunate feature of this case that the matter is being brought up to this court in one form or another for the fifth time and the parties are yet to get a final determination of a" dispute which was brought before court in a suit filed in 1962 as C. S. No 6 of 196 of the Amin's Court. The plaintiff in that suit is the appellant before us. The appellant-plaintiff and one Muthukoya Thangal (1st defendant) belonged to a common tarwad by name Biyyamada tarwad. Originally the said tarwad consisted of three tavazhies, namely, Biyyamada tavazhy, Pokkerkathiyammada tavazhy and Monthrappally Padipura tavazhy but the Biyyamada tavazhy had become extinct long ago. The plaintiff has brought the suit as representing the Monthrappally Padipura tavazhy. The 1st defendant Muthukoya Thangal was the sole surviving member of Pokkerkathiyammada tavazhy. By virtue of an arrangement entered into between the members of the two tavazhies there was an allotment of the common tarwad properties amongst the the two branches subject to the stipulation that the properties allotted to any one branch will on extinction of that branch revert to the other branch and that it shall not be competent for the members of either branch to transfer the properties by way of sale, gift or even by way of mortgage for any period exceeding two years. On 27 71960 the 1st defendant Muthukoya Thangal executed a gift deed purporting to transfer in favour of his wife and children defendants Nos. 2 to 8 thirteen items from out of the properties to the share of his branch. Thereupon the plaintiff filed the suit C. S. No. 6011962 in the Amin's Court for a declaration that the gift deed executed by the 1st defendant in favour of defendants Nos. 2 to 8 was invalid and inoperative and that the properties should revert on the death of the 1st defendant to the Mon-tbrappally Padipura branch of the plaintiff. The suit was subsequently transferred to the Administrator's Court in accordance with the provision in that behalf contained in the Laccadive Islands and Minicoy Regulation, 1912. On 18 91962 the Administrator decreed the suit granting the plaintiff the relief of declaration prayed for in the plaint. The suit was subsequently transferred to the Administrator's Court in accordance with the provision in that behalf contained in the Laccadive Islands and Minicoy Regulation, 1912. On 18 91962 the Administrator decreed the suit granting the plaintiff the relief of declaration prayed for in the plaint. That decree was, however, quashed by this High Court in O. P. No. 29 of 1963 filed by the 1st defendant. This court held that the procedure followed by the Administrator in deciding the suit without the aid of assessors was contrary to the mandatory provisions contained in the Regulation. On that ground that decision of the Administrator was set aside by this High Court and the suit was remanded to him for fresh trial. After remand, the suit was renumbered as O. S. No. 2 of 1964 in the Administrator's Court. It was again decreed by the Administrator in favour of the plaintiff on 4th April, 1965. Ext. B3 is a copy of that judgment. In the meantime, after the fresh trial of the suit had been closed and before the date of pronouncement of the judgment Muthukoya Thangal (1st defendant) had died on 1st April, 1965. It would appear that on 4 41965 the plaintiff filed a petition before the Administrator making mention of the fact that Muthkkoya Thangal had died on 1st April, 1965 and requesting that in view of the said development it should be declared that the properties comprised in the suit had reverted to the plaintiff's tavazhy on the death of Muthukoya Thangal. On the same day (4th April, 1965) the Administrator pronounced judgment declaring that the plaint schedule properties are tarward properties of the Pokkerkathiyammada branch, that the 1st defendant bad no independent alienable right over those properties, that the properties should revert on the death of the 1st defendant to the Monthrappally Padipura branch of the plaintiff, and that the impugned gift deed executed by the 1st defendant in favour of his wife and children was null and void. The subject-matter of the suit consisted of only thirteen items covered by the gift deed dated 27 71960 executed by the 1st defendant in favour of his wife and children (defendants Nos. 2 to 8), the validity of which was challenged by the plaintiff During the pendency of the suit the 1st defendant had purported to transfer in favour of defendants Nos. 2 to 8), the validity of which was challenged by the plaintiff During the pendency of the suit the 1st defendant had purported to transfer in favour of defendants Nos. 2 to 8 twenty more items of properties by an unregistered gift deed dated 14th March, 1964 After the suit was decreed in his favour by the Administrator as per he judgment Ext. B3, the plaintiff filed a petition dated 5th April, 1965 before the Tahsildar of the Androth Island, who was also the Inspecting Officer for the Island requesting that the legal representatives of Muthukoya Thangal-defendants Nos. 2 to 8-should be restrained from entering into the properties which were the subject matter of the suit O.S. No. 2 of 1964 as well as the twenty other items belonging to the Pokkerkathiyammada branch and in respect of which the deceased Muthukoya Thangal had purported to create another document of gift. There was a further prayer in that petition that either the petitioner should be permitted to enter into possession of all those properties or in the alternative that the properties should be committed to the custody of a third party so that pending final disposal of the matter the properties as well as the profits thereof maybe preserved. Ext. B6 is a copy of that petition. It is seen from the averments contained in the petition Ext. B6 that even though it was filed by the plaintiff only on 5 41965 the plaintiff was unaware of the fact that the Administrator had decreed the suit on the previous day and the prayer contained in the petition was that the defendants should be restrained from entering into the properties that formed the subject-matter of the suit which was pending decision before the Administrator. On 5-4-1965 itself the Tahsildar passed orders on that petition to the effect that in respect of the properties comprised in the suit pending in the Administrator's court the plaintiff should move the Administrator for getting appropriate reliefs. It was further ordered by the Tahsildar that since there was dispute between the parties regarding the validity of the unregistered gift deed executed by Muthukoya on 14 31964 neither the petitioner (plaintiff) nor the counter-petitioners (defendants Nos. It was further ordered by the Tahsildar that since there was dispute between the parties regarding the validity of the unregistered gift deed executed by Muthukoya on 14 31964 neither the petitioner (plaintiff) nor the counter-petitioners (defendants Nos. 2 to 8) should enter into the twenty items of properties covered by that document which did not form the subject-matter of O. S. No. 2 of 1964 and that they should be taken into Government custody. Accordingly the twenty items included in the unregistered gift deed dated 14 3 1964 were taken into Government custody. 2. Against the decision rendered by the Administrator in O. S. No. 2 of 1964 the defendants came up to this court by filing O. P. No. 1630 of 1965 under Art.226 of the Constitution seeking to quash the order passed by the Administrator. That writ petition was dismissed by a learned single judge of this court on 1st November, 1966 on the preliminary ground that the original petition was not maintainable since the decision of the Administrator was that of a civil court. Though a writ appeal (W. A. No. 5 of 1967) was preferred by the defendants against the said judgment the decision of the learned single judge was confirmed by a Division Bench. Thereafter an appeal was filed by the defendants before this court as C.M.A. No. 150 of 1967 calling in question the decree passed by the Administrator in O.S. No. 2 of 1964 under S.26 of Regulation.) of 1912. That appeal was allowed by a Division Bench by judgment dated 19th February, 1969 whereby the decision of the Administrator was set aside and the suit was remanded for fresh trial and disposal by the court competent to try it under S.25 (2) of the Laccadive, Minicoy and Amindivi Islands (Civil Courts) Regulation, 1965-Regulation 9 of 1965-which came into force on 1111969. Since the valuation of the suit was admittedly above Rs. 5000 the court competent to try under Regulation.9 of 1965 was the newly constituted Subordinate Judge's Court for Laccadive and Minicoy Islands at Kavaratty which had been established by that time. Accordingly the Subordinate Judge's Court at Kavaratty took the remanded suit on its file, tried it afresh and ultimately dismissed it by judgment dated 151970. 5000 the court competent to try under Regulation.9 of 1965 was the newly constituted Subordinate Judge's Court for Laccadive and Minicoy Islands at Kavaratty which had been established by that time. Accordingly the Subordinate Judge's Court at Kavaratty took the remanded suit on its file, tried it afresh and ultimately dismissed it by judgment dated 151970. The plaintiff preferred an appeal to this High Court against the said judgment of the Subordinate Judge but that appeal (C.M.A. 66 of 1970) was dismissed by this court on 3rd November, 1971. 3. As already mentioned, on 4th April, 1965 the Administrator had decreed the suit in the plaintiff's favour granting a declaration that the suit properties were the tarwad properties of Pokkerkathiyammada branch, that the gift deed executed by the 1st defendant in favour of defendants No. 2 to 8 was null and void and that on the death of the 1st defendant the properties should revert to the plaintiff's Manthrappally Padipura branch. Shortly thereafter the plaintiff moved the Tahsildar, Androth Island by a petition dated 2-6-1965 requesting that in view of the decision rendered by the Administrator on 4-4-1965 holding that the gift deed executed by Muthukoya Thangal in respect of the thirteen items was null and void and that on the death of Muthukoya Thangal those properties would revert and become vested in the petitioner's Monthrappally Padipura tavazhy. Those items which had been ordered by the Tahsildar to be retained in the possession of Monthrappally tavazhy as per the order passed on the earlier petition Ext. B6 dated 5-4-1965 should be directed to be delivered over to the plaintiff. The plaintiff complained in that petition that taking advantage of the interim direction given by the Tahsildar in Ext. B6 petition that until orders were obtained from the Administrator's Court the donees may retain possession of the properties covered by the impugned gifts deed of 1960, they had been plucking coconuts and appropriating the income from the next day onwards and that hence the defendants should be directed to make good to the plaintiff the full quantity of cocoanuts wrongly appropriated by them from those thirteen items. There was a further prayer in the petition that the remaining twenty other items of properties belonging to the Pokkerkathiyammada branch which had been taken into Government custody pursuant to the order passed by the Tahsildar on Ext B6 petition should be delivered over to the plaintiff together with all the cocoanuts which have been collected from those items. The plaintiff wound up that petition with the request that until the properties were handed over to him by executing the decree passed in O. S. No. 2 of 1964 a prohibitory order should be passed by the Tahsildar restraining the opposite parties from entering into any of the properties belonging to the Pokkerkathiyammada branch. Along with the said petition the plaintiff produced a copy of the order dated 4th April, 1965 passed by the Administrator decreeing O. S. No. 2 of 1964 in the plaintiff's favour. Ext. B4 is a copy of the aforesaid petition filed by the plaintiff before the Tahsildar. That petition was numbered in the Tahsildar's office as E. P. No. 9 of 1965 probably on account of the fact that in the preamble portion the plaintiff had described it as a petition for execution . On 8-6-1965 the Tahsildar passed the following on that petition: Pursuant to the said order all the thirty three items of properties were delivered over to the plaintiff as is seen from the delivery account Ext. A2 dated 15-6-1965. 4. After the decision of the Administrator was set aside by the High Court by the judgment dated 19 2 1969 in CMA. No. 150 of 1967 the defendants filed E.P. No. 13 of 1969 in the Munsiff's Court at Androth Island under S.144 of the Civil Procedure Code, praying that all the thirty three items should be re-delivered to them by way of restitution in view of the reversal of the Amin's decision by the judgment of the High Court. In that application which was filed on 5-4-1969 the Munsiff by an order dated 7th April, 1969 directed the issue of notice to the respondent. On receipt of notice the respondent appeared in person before the Munsiff on 10-4-1969. In that application which was filed on 5-4-1969 the Munsiff by an order dated 7th April, 1969 directed the issue of notice to the respondent. On receipt of notice the respondent appeared in person before the Munsiff on 10-4-1969. He was directed by the Munsiff to file his counter on the next day 11-4-1969 and the case was finally heard on 11th April itself On 15-4-1969 the Munsiff passed orders directing restitution by re-delivery of all the thirty three items to the defendants with mesne profits at the rate of Rs. 3000/- per year. Pursuant thereto re-delivery was promptly effected. An appeal filed by the plaintiff before the Subordinate Judge's Court complaining against the summary way in which the application for restitution had been disposed of by the Munsiff without even affording a reasonable opportunity to the plaintiff to put forward all his objections was dismissed by the Subordinate Judge. Thereupon the plaintiff filed a second appeal-S.A. No. 1119 of 1969-before this court challenging the orders passed by the courts below. That second appeal was allowed by a learned single judge of this court by judgment dated 23rd October, 1970. This court found that the Munsiff had acted with undue haste in disposing of the petition for re-delivery without affording sufficient opportunity to the plaintiff to get legal advice and to put forward his objections after obtaining professional assistance. It was held that the hurry displayed by the Munsiff had resulted in denying to the plaintiff-appellant a reasonable opportunity to present his contentions before the court and that the principles of natural justice had been violated. This court took note of the fact that the appellant had put forward before the Subordinate Judge's Court as well as in the second appeal various contentions raising inter alia questions as to the competence of the Munsiff's Court to entertain the petition for restitution, whether the plaintiff had come into possession of the thirty three items of properties by a delivery effected in execution of the decree passed by the Administrator in O. S. No. 2 of 1964 wherein only a declaratory decree had been passed in respect of items 1 to 13 alone and whether the prayer for restitution under S.144, CPC. was at all maintainable. was at all maintainable. Since none of these points had been properly considered by the lower courts this court allowed the second appeal, set aside the orders of both the lower courts and remanded the petition E. P. No. 13 of 1969 to the Munsiff's Court for fresh disposal after giving an opportunity to both sides to engage counsel and to lead evidence. There was also a direction in the judgment of this court that the appellant should deposit in this court Rs. 2,500/-on or before 15-12-1970 as evidence of his bona fides and the remand of the case was made conditional on compliance by the appellant with the said condition. The appellant duly complied with the aforesaid condition and an endorsement to that effect was made in the judgment issued from this court. 5. After the matter went back to the Munsiff's Court the plaintiff-appellant put in a detailed counter statement got prepared by his advocate on the main land. It was contended therein that it was not in execution of the decree in O. S. No. 2 of 1964 that the thirty three items of properties were taken possession of by the plaintiff since the suit was only for a declaration that the gift deed in respect of items 1 to 13 was invalid and only a declaratory decree had been granted. According to the plaintiff the order passed by the Tahsildar on the petition Ext B4 was only an executive order passed by an administrative authority. Alternatively it was contended that, in any event, since only items 1 to 13 formed the subject-matter of the suit and since items 14 to 33 were in Government custody and the prayer in Ext. B4 was for handing over those properties to the plaintiff from Government custody it could not be said that items 14 to 33 had been taken possession of by the plaintiff in execution of the decree passed by the Administrator's Court so as to entitle the defendants to seek restitution under S.144, CPC. Yet another contention urged by the plaintiff was that the Munsiff's Court had no jurisdiction to entertain the petition for restitution under S.144, CPC. Yet another contention urged by the plaintiff was that the Munsiff's Court had no jurisdiction to entertain the petition for restitution under S.144, CPC. Since under the said provision the said relief could be sought only from the court of "first instance" or where the court of first instance has ceased to exist, the court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution, would have jurisdiction to try such suit. The point taken by the plaintiff was that the "court of first instance" in relation to O. S. No. 2 of 1964 was the Administrator's Court and on the abolition of the said court by Regulation.9 of 1965 the court competent to try the suit was only the Subordinate Judge's Court, Kavaratty, since the value of the suit exceeded Rs 5,000/-. Reliance was placed on the fact that by the judgment in the High Court in CMA. No. 150 of 1967 it was to the Subordinate Judge's Court, Kava¬ratty that the suit was remanded for fresh trial in view of the abolition of the Administrator's Court. 6. The Munsiff Androth by his order dated 9th March, 1971 rejected the contentions of the plaintiff and held that the defendants were entitled to redeli-very of all the thirty three items under S.144, CPC. Pursuant to the order dated 15-4-1969 originally passed by the Munsiff the Munsiff allowed the redelivery petition E. P.13 of 1969 by recording the delivery that had already taken place. Unfortunately the Munsiff had to deal with the complicated questions raised in the case without the assistance of counsel and without even the facility of a library containing text-books or journals. The arguments were addressed by the parties appearing in person apparently because they were not in a position to indulge in the costly luxury of bringing counsel from the main land to conduct the case. The Munsiff took the view that the plaintiff had obtained delivery of possession of all the thirty three items in execution of the decree passed in O. S. No. 2 of 1964. According to the Munsiff, the decree passed by the Administrator covered not merely the thirteen items which formed the subject-matter of the suit but also the 20 other items in respect of which an unregistered gift deed had been executed by Muthukoya Thangal. According to the Munsiff, the decree passed by the Administrator covered not merely the thirteen items which formed the subject-matter of the suit but also the 20 other items in respect of which an unregistered gift deed had been executed by Muthukoya Thangal. Dealing with the contention put forward by the plaintiff that those twenty items were in Government custody and that it was from the Governments possession that those properties were handed over to the plaintiff, the Munsiff held that there was no evidence to show that the Government had ever been in possession of those properties. Overruling the plaintiff's plea that even if restitution is possible it could be granted only by the Sub Court, Kavaratty and that the Munsiff's Court bad no jurisdiction to entertain the application for restitution, the Munsiff took the view that since the plaintiff himself bad moved the Tahsildar as per E.P. No. 9 of 1965 to execute the decree in O S. No. 2 of 1964 and since the Munsiff's Court was the corresponding court in relation to the Tahsildar's Court which was abolished it was not open to the plaintiff to contend that the petition for restitution could not be maintained in the Munsiff's Court. It is on the basis of the aforesaid findings that the Munsiff held that the defendants were entitled to the relief of restitution with mesne profits the quantum of which was left to be ascertained in separate proceedings. 7. Against the said decision of the Munsiff the plaintiff preferred an appeal-A.S. No. 22 of 1971-before the Subordinate Judge, Kavaratty, The Subordinate Judge held that even though, according to law, the decree passed in O. S. No. 2 of 1964 was only a declaratory decree when the administration of civil justice in the Laccadive Islands was governed by the Regulation of 1912 "it was not hampered by any procedural intricacies" and the parties and the authorities who were in charge of administering the law had taken the said decree as an executable decree. In the opinion of the Subordinate Judge the averments contained in the petition evidenced by Ext. B4, the order passed by the Inspecting Officer-cum-Tahsildar on that petition and the delivery report of the Amin clearly went to show that it was in execution of the decree that all the thirty three items of properties were delivered over to the plaintiff. In the opinion of the Subordinate Judge the averments contained in the petition evidenced by Ext. B4, the order passed by the Inspecting Officer-cum-Tahsildar on that petition and the delivery report of the Amin clearly went to show that it was in execution of the decree that all the thirty three items of properties were delivered over to the plaintiff. Overruling the contention of the plaintiff that the petition Ext. B4 had been filed before the Tahsildar in his capacity as executive officer the Subordinate Judge held that since the Tahsildar was also the Inspecting Officer he was one of the authorities competent to function as a civil court under the 1912 Regulation and that hence the petition must be taken to have been filed before a civil judicial authority and and that the delivery must be considered as having been effected by a judicial process. On the aforesaid reasoning the Subordinate judge rejected the plaintiffs contention that in as much as the decree was not executable and the Tahsildar was only an executive officer the delivery of possession of the properties had not been obtained by him through a civil court in execution of the decree in O.S. No. 2 of 1964. The Subordinate Judge disagreed with the finding entered by the Munsiff that the decree in O S. No. 2 of 1964 covered not merely the thirteen items involved in the suit but also the twenty other items which formed the subject-matter of the unregistered gift deed and held that the said finding was erroneous and unsupportable. The Sub Judge found that since the suit was only for setting aside the gift deed of 1960 which admittedly took in only thirteen items and for a declaration that the 1st defendant bad no independent alienable right in respect of those thirteen items, only the properties (thirteen items) covered by that gift deed formed the subject-matter of the suit and that the decretal portion of the judgment rendered in O. S. No 2 of 1964 also showed that the decree was only in respect of those thirteen items. However, notwithstanding the said conclusion reached by him, the Subordinate Judge held that since all the thirty three items had been delivered to the plaintiff in purported execution of the said decree on the wrong basis that the decree covered not merely the thirteen items included in the impugned gift deed but also the twenty other items restitution could be ordered by the court in respect of those twenty items also at least under S.151 of the Civil Procedure Code, if not under S.144, CPC. itself. In regard to the twenty items not actually covered by the suit the Subordinate Judge repelled the contention of the defendants that they were in possession of those items at the time when the delivery was ordered and the finding recorded by the Munsiff upholding the said contention of the defendants was held to be unsustainable. After a consideration of the evidence relating to the said matter the Subordinate Judge found that those twenty items were, as a matter of fact, in Government custody pursuant to the order passed by the Tahsildar on the petition Ext. B6 and that it was from the possession of the Government that those items were delivered over to the plaintiff. Despite this, the lower appellate court proceeded to hold that the defendants were entitled to get possession of those items also from the plaintiff by way of restitution on the ground that the possession of the Government must be taken to have been for the benefit of the rightful claimant and that if it were not for the decree originally passed by the Administrator's Court in the plaintiff's favour in O. P. No. 2 of 1964, which was subsequently set aside, the plaintiff would not have been put in possession of those twenty items pursuant to the order passed on the petition evidenced by Ext. B. 4. On the jurisdictional question raised by the plaintiff that, in any event, the Munsiff's Court was not competent to entertain the petition for restitution under S.144, CPC Since it was not "the court of first instance" the Subordinate judge held that since it was admitted by both sides that the value of the subject-matter of the suit exceeded Rs. On the jurisdictional question raised by the plaintiff that, in any event, the Munsiff's Court was not competent to entertain the petition for restitution under S.144, CPC Since it was not "the court of first instance" the Subordinate judge held that since it was admitted by both sides that the value of the subject-matter of the suit exceeded Rs. 5,000/- it was only the Sub Court that had jurisdiction to try the suit after the coming into force of Regulation.9 of 1965 and that hence the Sub Court alone could be regarded as "the Court of first instance'. The view expressed by the Munsiff that the Munsiff's Court could be considered to be the court which passed the decree in O. S. No. 2 of 1964 was dissented from by the Subordinate Judge. But the Subordinate Judge proceeded to hold that the execution petition Ext. B4 must be taken to have been presented by the plaintiff to the court which passed the decree because the Administrator and the Inspecting Officer had concurrent jurisdiction and that the order passed by the Inspecting Officer on that petition incorporating certain directions to the Amin must be understood as one transferring the execution petition to the Amin's Court for execution. On this reasoning the Subordinate Judge held that it was the Amin's Court which had actually executed the decree in its capacity as the transferee court and since the Amin's Court was the court of the lowest grade in the Islands under the 1912 Regulation, the court which has succeeded to the Amin's Court is the Munsiff's Court, Androth and it had therefore jurisdiction to entertain the petition for restitution. On the basis of the aforesaid findings the Subordinate judge confirmed the order for re-delivery passed by the Munsiff and dismissed the appeal. Aggrieved by the said decision of the Subordinate Judge the plaintiff has come up to this court with this second appeal. 8. The learned advocate appearing for the appellant-plaintiff reiterated before us all the contentions that he had taken before the lower appellate court. The main points urged on behalf of the appellant were the following. Aggrieved by the said decision of the Subordinate Judge the plaintiff has come up to this court with this second appeal. 8. The learned advocate appearing for the appellant-plaintiff reiterated before us all the contentions that he had taken before the lower appellate court. The main points urged on behalf of the appellant were the following. Counsel argued that in as much as the Subordinate Judge had rightly found that the decree passed in O.S. No. 2 of 1964 was only declaratory in nature the logical conclusion that must necessarily follow from the said finding is that there could not have been in law any delivery of properties in execution of the said decree and no question of re-delivery by way of restitution could therefore arise. It was contended that the lower appellate court has completely misunderstood the nature and scope of the petition evidenced by Ext. B4 and that it has gone wrong in holding that it was in reality an execution petition and had been treated as such by the Tahsildar. According to the learned advocate for the appellant Ext. B4 was only an application preferred by the plaintiff before an executive authority seeking its intervention to enable him to take peaceful possession of the properties which had been declared by the decree to have become vested in the plaintiff's tavazhy on the death of Muthukoya Thangal. Counsel pointed out that the aforesaid nature of the petition is conclusively shown by the fact that in respect of the twenty items not involved in the suit the request contained in the petition was that those properties should be handed over to the plaintiff from Government custody together with the cocoanuts which had been collected therefrom. As an alternative plea, counsel urged that, in any event, even if Ext. B4 were to be regarded as a petition for execution of the decree passed in O.S. No. 2 of 1964 that could be only in respect of the thirteen items cover d by the decree and in regard to the remaining twenty items there could arise no question at all of any delivery of possession in execution of the decree. In this context counsel submitted that in determining the character of the petition evidenced by Ext. In this context counsel submitted that in determining the character of the petition evidenced by Ext. B4 it is relevant to note that the court which passed the decree was the Administrator's Court and under S 28 of Regulation, 1912 read with the notification dated 28-2-1957 issued by the Government of India under S.122 of the States Reorganisation Act, 1956 the petition for execution of the said decree could have been filed only before the Administrator or the Secretary to the Administrator if it was not filed before the Amin of the Island. Counsel submitted that the legal position that obtained in June, 1965 when Ext. B4 petition was filed was that the Tahsildar/Inspecting Officer who entertained and disposed of the petition Ext. B4 was not vested with any judicial functions and hence it could not be said that he was functioning as a civil court in dealing with the petition Ext. B4. Lastly it was contended that the Munsiff's Court, Androth had no jurisdiction to entertain the petition for restitution since under S.144, CPC. such a petition can be filed only in the court of first instance. Since the value of the suit O. S. No. 2 of 1964 was above Rs. 5000 it is only the Sub Court established for the Laccadive and Minicoy Islands under Regulation.9 of 1965 which can be regarded as the court of first instance after the abolition of the Amin's Court where the suit was originally instituted and also the Administrator's Court which actually tried it both of which were the courts of unlimited jurisdiction under Regulation of 1912, Counsel contended that the Subordinate Judge had gone wrong in holding that the execution had been ordered by the Amin's Court as a transferee court and that since the Munsiff's Court can be said to be the successor of the Amin's Court the Munsiffs Court had jurisdiction to entertain the petition for restitution. It was argued by the appellant's advocate that the assumptions made by the Subordinate Judge that in dealing with the petition Ext. It was argued by the appellant's advocate that the assumptions made by the Subordinate Judge that in dealing with the petition Ext. B4 the Tahsildar was functioning as a civil court and that the effect of the order passed by the Tahsildar on Ext B4 petition was to transfer the execution petition to the Amin's Court are wholly fallacious and unfounded and that what had really taken place was only the issuance of certain executive directions by a superior administrative authority, namely, the Tahsildar, to his executive subordinate, namely, the Amin. Counsel also submitted that the view taken by the Subordinate Judge that a petition for restitution under S.144, CPC. can be filed before a transferee court is incorrect in law and that even in a case where delivery was actually effected by a transferee court the relief of restitution can be sought only before the court of first instance and not from the transferee court. On all these grounds it was submitted by the counsel for the appellant that the orders passed by the courts below allowing the defendants' prayer for re-delivery of possession of all the thirty three items by way of restitution under S.144, CPC. are illegal and without jurisdiction and that they should therefore be set aside. 9. The learned advocate appearing for the respondents (defendants) endeavoured to sustain the legality and correctness of the conclusions reached by the lower appellate court. It was contended by him that even though the decree passed in OS. No. 2 of 1964 may strictly be only declaratory in character, the records show that the properties had been delivered over to the plaintiff in purported execution of that, decree and hence the defendants were entitled to seek restitution under S.144. CPC. when the said decree was set aside by the High Court in C. M. A. 150 of 1967. According to the learned advocate the contents of the petition Ext. B4, the order passed thereon by the Tahsildar/Inspecting Officer and the further proceedings taken pursuant thereto culminating in the delivery receipt Ext. A2 will cumulatively go to show that it was only in execution of the decree, rightly or otherwise, that all the thirty three items of properties were delivered over to the plaintiff. B4, the order passed thereon by the Tahsildar/Inspecting Officer and the further proceedings taken pursuant thereto culminating in the delivery receipt Ext. A2 will cumulatively go to show that it was only in execution of the decree, rightly or otherwise, that all the thirty three items of properties were delivered over to the plaintiff. It was urged on behalf of the respondents that in such circumstances it was wholly open to the defendants to seek re-delivery by way of restitution at least under S.151, CPC. if not under S.144, CPC. itself It was further contended by the learned advocate for the respondents that the Subordinate Judge was right in holding that the Munsiff's Court had jurisdiction to entertain the petition for restitution since the Munsiff's Court, Androth is the successor of the Amin's Court by which the decree had been actually executed pursuant to the order passed by the Tahsildar transferring to it the decree for execution. 10. After giving our anxious consideration to all the relevant aspects of the case in the light of the arguments. advanced on both sides we have unhesitatingly come to the conclusion that the contentions put forward by the plaintiff appellant have to be upheld and that this appeal has to be allowed. 11. We shall first take up for consideration the question whether the thirty three items of properties in respect of which the relief of restitution is sought by the respondents bad been delivered over to the plaintiff through a court in execution of the decree passed in O. S. No. 2 of 1964. The learned Subordinate judge has rightly held that the decree in O. S. No. 2 of 1964 was only declaratory in nature and that only items 1 to 13 formed the subject-matter of that suit and decree. The decree being only declaratory and hence not capable of execution there could not, ordinarily, have been any delivery of possession through court even in respect of those thirteen items in execution of that decree. The decree being only declaratory and hence not capable of execution there could not, ordinarily, have been any delivery of possession through court even in respect of those thirteen items in execution of that decree. The Subordinate Judge, has, however, taken the view that the plaintiff as well as the authority (Tahsildar) before whom the petition evidenced by Ext B4 was filed had proceeded on the assumption that the decree could be executed and that it was in purported execution of the decree that all the thirty three items were delivered over to the plaintiff through the instrumentality of the Amin on the strength of the order passed by the Tahsildar/Inspecting Officer. We shall now examine whether this view expressed by the court below is correct and sound. It is true that Ext. B4 petition was styled as one for execution of the decree but that, by itself, is not conclusive of the nature of the proceedings, particularly in view of the highly unsatisfactory and confused state of affairs relating to the administration of justice that existed in the Island prior to the coming into force of Regulation.9 of 1965. The conditions that prevailed in this backward area prior to 1967 have been graphically described by Krishna Iyer, J. (as he then was) in the judgment in S A. No. 1119 of 1969 thus: "It is tragic but true that the lovely coral islands are inhabited by a backward population and, till the other day serviced by an unlovely system of law. Before Regulation.9 of 1965 was applied, the Amin of the Island, a little revenue official who combined in himself powers, civil and criminal, administered some kind of law. largely customary, allegedly according to justice, equity and good conscience and going by experience somewhat arbitrarily. Indeed, under the earlier Regulation it was a kind of 'chancellor's foot' justice if I may say so " We have, therefore, to determine the true nature of the proceeding taken before the Tahsildar not so much from the language that the artless islander unarmed by professional legal assistance may have used in his petition Ext. B4 but from the totality of the facts and circumstances relating to that proceeding inclusive of whether the decree could have been executed at all, whether the authority before whom the petition Ext. B4 but from the totality of the facts and circumstances relating to that proceeding inclusive of whether the decree could have been executed at all, whether the authority before whom the petition Ext. B4 was filed was a civil judicial authority competent to order execution of the decree and the exact nature of the reliefs that were sought from and granted by the said authority. We will first look into the contents of Ext. B4 itself. Although in the preliminary paragraph the petitioner has described it as an execution petition it is seen from the subsequent paragraphs that he has maintained a clear distinction between the thirteen items covered by the decree and the twenty items which were not the subject-matter of O. S. No. 2 of 1964. Even in respect of the items covered by the decree reference is made in the petition to the fact that in respect of those thirteen items which were included in the gift deed whose validity was under challenge in O. S. No. 2 of 1964 the Tahsildar had passed an order on Ext. B6 petition that the defendants may retain possession of those Items on the strength of that gift deed until the said suit was decided. On a careful reading of Ext. B4 it appears to us to be clear that it was on account of the fact that the Tahsildar had previously issued such an interim direction on Ext. B6 petition that the plaintiff had to approach him with the petition Ext. B4 bringing to the notice of the said authority that the suit had teen decreed in the plaintiff's favour declaring that the gift deed executed by Muthukoya Thangal in favour of defendants Nos. 2 to 8 was invalid and that the properties would become vested in the plaintiff's tavazhy on the death of Muthukoya Thangal and consequently requesting that in view of the said decision rendered in the suit the defendants must be asked to deliver the properties to the plaintiff. It is also significant that in respect of the remaining twenty items which were not covered by the suit the request contained in Ext. B4 was that since those items had been taken into Government custody pursuant to the order passed in Ext. It is also significant that in respect of the remaining twenty items which were not covered by the suit the request contained in Ext. B4 was that since those items had been taken into Government custody pursuant to the order passed in Ext. B6 they should be handed over to the plaintiff since the plaintiff is the person entitled to possession thereof on the basis of the declaration granted by the court. Admittedly the order Ext. B6 had been passed by the Tahsildar only in his capacity as an executive officer. In our opinion, Ext. B4 was filed only as a sequel to Ext. B6 seeking further directions from the Tahsildar regarding the possession of the properties in modification of the interim orders previously passed by him in the light of the declaration granted as per the decree passed by the Administrator's Court. 12. Now let us examine the question whether the Tahsildar/Inspecting Officer who dealt with the petition Ext. B4 was a civil judicial authority competent to entertain and dispose of a petition for execution of the decree passed by the Administrator. S.28 of the Laccadive Islands and Minicoy Regulation, 1912 (1 of 1912) was in the following terms: "All decrees shall ordinarily be executed by the amin of the island where the suit was instituted. But the Collector or the Inspecting Officer may execute his own decree if convenient." By virtue of S.6 of the States Reorganisation Act, 1956 a new Part C State known as the Laccadive, Minicoy and Amindivi Islands was constituted comprising the Laccadive and Minicoy Islands which originally formed part of the Malabar District and the Amindivi Islands which were previously part of the South Canara District of the composite Madras State. S 60 (1) of the said Act extended the jurisdiction of the Kerala High Court to this new Part C State. S.122 of the said Act empowered the Central Government, in respect of any Part C State. by issue of notification in the official gazette to specify the authority, officer or person who, as from the appointed day shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification. S.122 of the said Act empowered the Central Government, in respect of any Part C State. by issue of notification in the official gazette to specify the authority, officer or person who, as from the appointed day shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification. In the exercise of the said power conferred by S.122 the Central Government issued Notification No. 71/19(2)/57 ANL dated 28 21957 specifying that the powers which were exercisable by the Collector in respect of the territory of the Laccadive group of Islands under Regulation.) of 1912 shall as from 1st November, 1956 be exercisable by the Administrator of the Laccadive, Minicoy and Amindivi Islands and that the powers that were exercisable by the Inspecting Officer or by any of the Collector's Assistants under Regulation.) of 1912 shall as from the appointed day be exercisable by the Secretary to the Administrator. The result was that even though the Collector and the Inspecting Officer were vested with some judicial functions under Regulation.) of 1912 they were divested of such judicial functions and powers with effect from 1-11-1956 and those powers became vested in the Administrator and the Secretary to the Administrator. Hence on 2-6-1965 when the petition Ext. B4 was entertained by the Inspecting Officer/Tahsildar be was not competent to exercise any civil judicial functions in the Islands but was only an executive officer. This vital aspect has escaped the attention of the Subordinate Judge who seems to have erroneously assumed that until the date of coming into force of Regulation.9 of 1965 the Tahsildar had continued to possess the civil judicial powers originally conferred on the Inspecting Officer by Regulation.) of 1912. As already observed, the correct position is that at the time when Ext. B4 petition was entertained and disposed of by the Tahsildar he was only an executive officer without any judicial functions or powers. The contention of the plaintiff that he had not obtained possession of the properties in question in execution of the decree through a court has, therefore, to be upheld. 13. Further, a proceeding for execution of the decree passed by the Administrator's court in O.S No. 2 of 1964 could have been instituted under the law in force in the Islands in June, 1965 only before the Administrator himself or before the Amin's Court. 13. Further, a proceeding for execution of the decree passed by the Administrator's court in O.S No. 2 of 1964 could have been instituted under the law in force in the Islands in June, 1965 only before the Administrator himself or before the Amin's Court. The order passed by the Tahsildar on Ext. B4 clearly indicates that it was in the nature of an executive direction by the Tahsildar to the Amin in his capacity as a subordinate executive officer. We are unable to agree with the interpretation placed on the said order by the Subordinate Judge, that it was a judicial order passed by the Tahsildar functioning as a court transferring the decree for execution to the Amin. The direction contained in the order passed by the Tahsildar that the Amin should deliver the properties and report to the Tahsildar within five days is completely inconsistent with the theory that what was done under the order was to transfer the execution proceedings from the Tahsildar's court to the Amin's Court. As already observed, the Tahsildar was not competent to function as a court at the relevant time and viewed against that background the direction contained in Ext. B4 is quite understandable as an executive order issued by a superior officer to his subordinate and this to our mind appears to have been the true character of that proceeding. In respect of the thirty three items the Tahsildar bad previously issued certain interim executive directions while dealing with the petition Ext. B6. As regards the properties that formed the subject matter of O. S. No. 2 of 1964 those interim directions were intended to be in force until the dispute between the parties was pronounced upon by the Administrator's Court. What was done by the Tahsildar as per the order Ext. B4 was to issue further executive directions in the matter of possession of the properties on the basis of the decree passed by the Administrator's Court in O. S. No. 2 of 1964. We accordingly set aside the finding of the court below that the plaintiff had come into possession of the thirty three items or properties by the process of delivery given to him by a court in execution of the decree passed in O. S. No. 2 of 1964. 14. We accordingly set aside the finding of the court below that the plaintiff had come into possession of the thirty three items or properties by the process of delivery given to him by a court in execution of the decree passed in O. S. No. 2 of 1964. 14. In the light of the above conclusion reached by us on the basis of which the appellant is entitled to succeed in this second appeal it is really unnecessary for us to consider the further questions as to whether in respect of the twenty items not covered by the decree in O. S. No. 2 of 1964 the order passed in Ext. B4 could be said to have been passed in execution of the decree and whether after coming into force of Regulation.9 of 1965 the Munsiff's Court, Androth had jurisdiction to entertain the restitution petition out of which this second appeal has arisen. However, since elaborate arguments have been addressed to us on these points also by the counsel appearing on both sides we may briefly indicate our views on these questions as well. As regards the first point afore mention d it is manifest from a mere reading of Ext. B4 that the plaintitf-petitioner had maintained a clear distinction between the thirteen items covered by the suit and the twenty items which were not comprised in the suit. In regard to the latter twenty items not included in the suit the request made by the petitioner in Ext. B4 was that since Muthukoya Thangal had died and it had been declared by the decree that on his death the plaintiff's tavazhy would be entitled to all the properties of Muthukoya Thangal's branch the twenty items which had been taken into Government custody as per the order passed on Ext. B6 should be handed over to the plaintiff from Government custody. By no means could this be said to be a prayer for execution of the decree in respect of the items not covered by the suit or decree. By an earlier executive order passed by the Tahsildar on Ext. B6 petition those items had been taken into Government custody obviously with intent to avoid any breach of peace on account of the existence of a dispute concerning those items as between the plaintiff and the defendants Nos. By an earlier executive order passed by the Tahsildar on Ext. B6 petition those items had been taken into Government custody obviously with intent to avoid any breach of peace on account of the existence of a dispute concerning those items as between the plaintiff and the defendants Nos. 2 to 8 who were claiming title under an unregistered gift deed executed by Muthukoya Thangal. What was sought in Ext. B4 was only the release of those items to the plaintiff from Government custody in view of the pronouncement by the civil court in O. S. No. 2 of 1964 that on the death of Muthukoya Thangal all the properties of his branch would revert to the petitioner's tavazhy. It is not, therefore, possible to uphold the finding entered by the Subordinate Judge that even though only items 1 to 13 were the subject-matter of O S. No 2 of 1964 it was in execution of that decree that items 14 to 33 were also delivered over to the plaintiff pursuant to the order passed by the Tahsildar on Ext. B4. 15. We now come to the question whether the Munsiff's Court, Androth was competent to entertain the restitution petition and order re-delivery of the properties to defendants Nos. 2 to 8 under S.144 of the Code of Civil Procedure. For the purposes of the further discussion on this point we shall assume that the properties had been delivered over to the plaintiff in execution of the decree passed by the Administrators Court in O. S. No. 2 of 1964. The Laccadive, Minicoy and Amindivi Islands (Civil Courts) Regulation, 1965 Regulation No. 9 of 1965 was brought into force on Ist November, 1967. Under S.3 thereof, with effect from the date of commencement of the Regulation, a District Court, a Subordinate Judge's Court and a Munsiff's Court were established for the Islands. The Laccadive, Minicoy and Amindivi Islands (Civil Courts) Regulation, 1965 Regulation No. 9 of 1965 was brought into force on Ist November, 1967. Under S.3 thereof, with effect from the date of commencement of the Regulation, a District Court, a Subordinate Judge's Court and a Munsiff's Court were established for the Islands. S 12 lays down that the District Court shall, subject to the provisions of S.15 of the Code of Civil Procedure, 1908, have original jurisdiction in all civil suits without limit as regards the value and that the jurisdiction in original civil suits as regards the value to be exercised by a Subordinate Judge or a Munsiff shall be determined by the Administrator after consultation with the High Court Admittedly, the outer limit of pecuniary jurisdiction of the Munsiff's Court has been fixed under the said Section as Rs. 5,000. 16. The suit O. S. No. 2 of 1964 was originally filed in the Amin's Court but it was withdrawn by the Administrator to his court under S.24 of Regulation.) of 1912. The Amin's Court as well as the Administrator's Court had at that time unlimited pecuniary jurisdiction. It is common ground that the value of the subject-matter of the suit (O. S. No. 2 of 1964) was above Rs. 5000. It was for that reason that when the High Court set aside the decree passed by the Administrator's Court and directed a retrial as per the judgment, in C M. A. No. 150 of 1967 dated 19 21969 the suit was remanded for fresh trial to the Subordinate Judge's Court at Kavaratty which was by then the court competent to try the suit under Regulation.9 of 1965. Sub-sections (2) (3) and (5) of S.25 of Regulation.9 of 1965 provide: "[2] Every suit, proceeding, case or appeal pending before any of the existing civil courts immediately before the commencement of this Regulation shall on such commencement, stand transferred to the court exercising, under this Regulation, jurisdiction which corresponds, as far as may be, to the jurisdiction of the Court in which the suit, proceeding, case or appeal was pending and the court to which the suit, proceeding, case or appeal is deemed to be transferred, shall proceed to try, hear and determine the matter as if it had been pending with that court. [3] Any judgment, decree, sentence or order passed or made before the commencement of this Regulation by any existing civil court shall be deemed for the purpose of execution to have been passed by a court constituted under this Regulation which corresponds, as far as may be. to the court which passed or made the judgment, decree, sentence or order, as the case may be. [5] Where any existing civil court, has by reason of its abolition under S.24, ceased to have jurisdiction with respect to any suit or proceeding, any proceeding in relation to that suit or proceeding which, if that court had not ceased to have jurisdiction, might have been had therein, may be had in the court to which the business of the former court has been transferred under this section." 17. Under S.144, CPC. where relief is sought by way of restitution on the ground that a decree or order has been varied or reversed the application for such relief is to be filed in "the court of first instance". The "court of first instance" in respect of O.S. No 2 of 1964 was the Administrator's Court and on the said court having been abolished the application for restitution had to be made to the corresponding court which had jurisdiction to entertain and try the suit under the law as existing at the time of the filing of the application. Since the value of the subject-matter of O.S No. 2 of 1964 exceeded Rs. 5000 it is only the Subordinate Judge's Court, Kavaratty established under Regulation.9 of 1965 that can be regarded as "the court of first instance" competent to entertain an application for restitution under S.144 of the Civil Procedure Code. The lower appellate court also seems to have realised that this is the correct legal position. But it took the view that what was done by the Tahsildar by the order passed by him on Ext. B4 was to transfer the execution petition to the Amin's Court and since the Amin's Court had executed the decree in its capacity as a court subordinate to the Tahsildars Court it must be taken to have acted as the court of the lowest level in the Island and hence the corresponding court under Regulation.9 of 1965 must be taken to be the Munsiff's Court which is now the court of lowest pecuniary jurisdiction. There are many fallacies in this reasoning. Firstly, we have already pointed out that the order passed by the Tahsildar on Ext. B4 petition was only in the nature of a direction given by the Tahsildar to a subordinate executive officer and that it cannot be regarded as an order transferring the decree for execution to the Amin's Court, even if it is to be assumed for the purposes of this discussion that the Tahsildar was functioning as a court. Secondly, under Regulation.) of 1912 the Amin's Court as well as the Inspecting Officer's (Tahsildar's) Court were both vested with unlimited pecuniary jurisdiction and hence there is absolutely no basis for assuming that the so-called transfer of the execution petition was from the Tahsildars Court to an inferior court of lowest jurisdiction, namely, the Amin's Court. It is not therefore possible to uphold the reasoning of the Subordinate Judge that it was the Amin's Court that had actually executed the decree and that in so executing the decree it was functioning as the court of lowest pecuniary jurisdiction then existing on the Island to which the corresponding court under Regulation.9 of 1965 is the Munsiff's Court. 18. Finally, the Subordinate Judge is not correct in bis view that an application for restitution under S 144, CPC can be filed before the transferee court by which the decree had been actually executed. The jurisdiction to entertain an application for restitution has been conferred by S.144, CPC. only on the court of first instance. The application seeking relief under the Section has, therefore, to be made before the court which decided the case in the first instance and it cannot be made before a court to which the execution of the decree had been transferred. See Sadashiv Basappa Madabavi v. Annappa Shidlingappa Poojari AIR 1960 Mysore 273 and The Regional Food Controller, Meerut and Another v Hazari Mal Radha Kishun, (AIR. 1970 Allahabad 272. Reference may also be usefully made to the following observations of the Supreme Court in Mahijibhai Mohanbhai Barot v. Patel Manibhat Gokalbhai and others, AIR. 1965 SC. 1477 at 1479: "S. 39 provides for a transfer of a decree for execution to another court and by virtue of O 21. R.10, the bolder of a decree desiring to execute it shall, if the decree has been sent to another Court, apply to that Court under S.144. 1965 SC. 1477 at 1479: "S. 39 provides for a transfer of a decree for execution to another court and by virtue of O 21. R.10, the bolder of a decree desiring to execute it shall, if the decree has been sent to another Court, apply to that Court under S.144. however, the application has to be made to "the court of first instance. " The section does not permit an application to be made to a transferee court." Though the above observations occur in the minority judgment of Sarkar, J. there is no pronouncement to the contrary on this aspect in the majority judgment and the difference of opinion was only on the question whether an application for restitution is an application for execution of a decree so as to be governed by Art.182 of the Limitation Act, 1908. 19. The court to which a decree has been transferred for execution exhausts its functions in respect of that matter as soon as execution of the decree is complete and we fail to see how such a court can be regarded as the court of first instance for the purpose of S.144, CPC. We have no hesitation to bold that the Munsiff's Court, Androth had no jurisdiction to entertain the petition for restitution out of which this second appeal has arisen. The finding to the contrary entered by the Subordinate Judge will stand set aside. 20. In the result, we allow the second appeal, set aside the orders of the courts below and dismiss E P. No. 13 of 1969 in O. S No. 2 of 1964. The appellant will get his costs of this second appeal from the respondents. The parties will bear their respective costs in the courts below. The balance amount in court deposit from out of the amount of Rs. 2,500/- deposited by the appellant in this court pursuant to the directions contained in the judgment in S. A. No. 1119 of 1969 will be refunded to the counsel for the appellant.