OUSEPH PAILY v. DEVAKI AMMA — 1987 DIGILAW 376 (KER)

Judgment :- 1. The first defendant in O.S.321 of 1968, in the court of the Munsiff, Perumbavoor is the revision petitioner. The suit was for a permanent prohibitory injunction and damages, against the petitioner. The petitioner contested the suit. He claimed that he was in possession of the property as a tenant since 1122 ME Ext. Al varamcheet, relied on by the plaintiff to sustain the prayer for injunction, according to the petitioner, was executed by her and her husband with a view to enable them to get a favourable decree in OS 245/61, Munsiff's Court, Perumbavoor. The suit was dismissed by the trial court. The appeal filed by the plaintiff was also dismissed. The Second Appeal therefrom was allowed and the case was remanded. After remand, the trial court again dismissed the suit. But on appeal (AS 5/77), the Appellate Court reversed the judgment and decreed the suit as prayed for. The Second Appeal taken therefrom by the defendant-petitioner, it is reported, has been dismissed. 2. During the pendency of the suit the Receiver appointed by the trial court, was in possession of the property. The Receiver however handed over possession of the property to the petitioner under orders of the trial court, which in the meantime had dismissed the suit. 3. On the suit being decreed by the Appellate Court, the first respondent filed IA 388/85 in the trial court under S.151 CPC praying that she be restored to the property,' with mesne profits. The petitioner herein opposed the application. He inter alia contended that the prayer in the application cannot be granted especially when there is no decree for recovery of possession of the disputed property. 4. The trial court disallowed the prayer for mesne profits but allowed delivery of the property through court. It is this order that is under challenge in the CRP 5. The one, and perhaps the only question, that arises for consideration is, whether the court below was justified in ordering delivery of the property in dispute to the respondent in exercise of its inherent jurisdiction under S.151 CPC? Before attempting an answer to the question, let us marshal the essential facts. Most of the essential facts are admitted and they are: The Receiver was in possession of the property. He delivered the property to the petitioner under orders of the trial court. Before attempting an answer to the question, let us marshal the essential facts. Most of the essential facts are admitted and they are: The Receiver was in possession of the property. He delivered the property to the petitioner under orders of the trial court. The decree dismissing the suit was ultimately reversed and the suit was decreed (see judgment in AS 5/77). This decree has become final because the Second Appeal taken therefrom was dismissed in limine. 6. The effect of the decree for injunction is that the court has declared that the respondent is in possession of the property; but the respondent cannot get or recover possession of the property in execution of the decree because the decree is for perpetual injunction. 7. From the discussion above it is clear that the petitioner under no circumstance could have recovered possession of the property. The property however was delivered to the petitioner by the Receiver under orders of the trial court. It is true that at the time when the Receiver delivered the property, the suit had been dismissed. But subsequently the suit was decreed and therefore the respondent was entitled to get delivery of the property from the Receiver. 8. We have, in this context, to see what is the effect of an order appointing a Receiver. A Receiver is appointed to administer the property upon the title of the party to the lis; "the right of those parties are not affected by the order, but it operates as an injunction to prevent them from receiving the subject matter of the order, or from dealing with it to the prejudice of the other parties to" the lis. (Kerr on Receivers 16th Edition, Page 121). The possession of the Receiver thus enures for the benefit of the true owner. The property becomes custodia legis. To put it differently the Receiver holds the property for the benefit of the party who ultimately may be adjudged by the court to be entitled to the same. The Supreme Court has spoken thus in this regard: "The court orders the appointment of the Receiver because the court is anxious to see that the properties are preserved for the benefit of the original owner as judicially determined. (Emphasis supplied) (See Kanhaiyalal v. Dr. D.R. Banaji (AIR 1958 SC 725). 9. The Supreme Court has spoken thus in this regard: "The court orders the appointment of the Receiver because the court is anxious to see that the properties are preserved for the benefit of the original owner as judicially determined. (Emphasis supplied) (See Kanhaiyalal v. Dr. D.R. Banaji (AIR 1958 SC 725). 9. Going by the above principles, the respondent who has obtained the decree for injunction, is entitled to get possession of the property from the Receiver. But the Receiver, as already stated, banded over the property to the petitioner under orders of the trial court. How to enforce restitution is the question now before us. Subsequent events, particularly the decreeing of the suit recognising the respondent's possession by the Appellate Court shows that the trial court erred in ordering delivery of the property to the petitioner. This erroneous order has resulted in miscarriage or justice. Such errors therefore require to be set right by the court which committed the mistake. How, is the question. The answer is by invoking the inherent jurisdiction, apart from the ordinary statutory jurisdiction, because it is a well established maxim of law that the act of a court shall prejudice no manacles curiae neminem gravabit. If the court is of the view that without the exercise of such inherent power, ends of justice would get frustrated in a given case, the court shall exercise that power and set right the error committed by it. When I say the act of the court, it does not mean the act of the first court or of any intermediary court of appeal but all the courts in the hierarchy of courts recognised under the system of jurisprudence, we are familiar with; that is from the lowest court where the issues are settled, considered and disposed of, upto the highest court which finally disposed of the case. I am fortified in this view by a decision of the Privy Council in Rodger v. The Comptoir D' Escompte De Paris (1871) 3 PC 465). The Privy Council has accordingly observed: "It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the Court". The Privy Council has accordingly observed: "It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the Court". (Emphasis supplied) Inherent power therefore shall be invoked by the courts if it is necessary for the ends of justice or to prevent abuse of the process of the court. 10. The decree in the suit, as already stated, is one for permanent injunction. This decree thus recognises the possession of the respondent. But due to the erroneous order passed by the trial court, the Receiver handed over possession to the petitioner. This error requires to be set right. The counsel for the petitioner did cot bring to my notice any specific provision of law empowering the court to set right this error. The court which executes the decree cannot issue a direction to put the decree holder in possession of the property because the decree is not one for recovery of possession, but it is only ore recognising the fact that the decree holder is in possession of the property. The procedural wrangle makes it impossible for the plaintiff-decree holder (respondent herein) to enjoy the fruits of the decree. In this connection it is profitable to remember that there is no specific provision in the CPC fettering the court's power or precluding the court from doing something to set right matters and thus do justice between the parties. For that matter there is no specific prevision in the Code under which it can give adequate and appropriate relief to the respondent. Anyway cone was brought to my notice by the counsel for the petitioner although he relied on the decision of the Delhi High Court in Sarup Singh v. Daryodhan Singh (AIR 1972 Delhi 142). This ruling has highlighted the principles relating to the execution of a mandatory injunction. It has no application here because the question arising for consideration here is one relating to the right of the respondent to get herself restored to the property en the suit being decreed by the Appellate Court. This ruling has highlighted the principles relating to the execution of a mandatory injunction. It has no application here because the question arising for consideration here is one relating to the right of the respondent to get herself restored to the property en the suit being decreed by the Appellate Court. In such contingencies, it is the duty of the court to invoke the inherent power, a power vested in every court by virtue of its duty to do justice between the parties before it, and restore the party to the property which it would have occupied if the wrong order had not originally been passed. 11. Facts discernible from the records of the case do show that the Receiver handed over possession of the property to the petitioner immediately after the dismissal of the suit by the trial court, under orders of the said court. The decree passed by the Appellate Court where the appeal from the trial court judgment was pending, proves to the hilt that the trial court committed an error in directing the Receiver to deliver possession of the property which was in custodia legis, to the petitioner. The property therefore shall revert to the respondent because she has judicially been determined as the true owner in possession of the property. The court below therefore, has rightly directed delivery of the property in the exercise of its inherent jurisdiction under S.151 CPC to the respondent who has been found to be the owner in possession of the property and for whose benefit the property must be deemed to have been put in custodia legis. The CRP for the reasons stated above, is liable to be dismissed. Accordingly the same is dismissed. No costs.