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TMI Blog1977 (2) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... the Letters Patent Appeal is preferred against the Civil Miscellaneous Appeal which was filed by the 2nd defendant. Since the appeal preferred by the 1st defendant was not heard along with that Civil Miscellaneous Appeal, it is brought up for decision along with the Letters Patent Appeal preferred by the 2nd defendant against the dismissal of his Civil Miscellaneous Appeal. 3. O. S. No. 6/70, was filed in the Subordinate Judge's Court, Gudivada, by the present 1st respondent (in the Letters Patent Appeal) for partition of certain properties and for possession of a share therein. He impleaded four defendants to the suit. The first defendant was his own father, the 2nd defendant was his father's elder brother, the third defendant was his mother and the 4th defendant his sister. One of the defences was that there was a partition between the two brothers viz., defendants 1 and 2 and consequently the latter was not a necessary party to the suit. 4. The plaintiff filed I. A. No. 1261/68 for the appointment of a Receiver . The Court acceded to this request and by its order dated 3-12-1969 appointed a Receiver for the entirety of the plaint schedule properties including those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Patent Appeal by the 2nd defendant 6. Sri N. Bapi Raju, learned counsel for the appellant in the Letters Patent Appeal argues , and the same argument is adopted by Sri M . Krishna Mohana Rao , learned counsel for the appellant in C. M. A. 35/75 that in view of the Full Bench decision in Veeraswami v. Ramanna AIR 1935 Mad 365 there can be no doubt that once the suit is restored , the interlocutory orders passed before the dismissal of the suit are also restored . But they cannot be said to be in operation during the period between the dismissal and restoration . Learned counsel argues that if such is the effect of restoration , very much anomalies will arise. He illustrates the argument by saying that if there was an alienation during that period or taking possession despite the injunction order passed before the order of dismissal , they could not be found fault with and it could not be said that the alienation was bad or that the defendant, who took possession , was guilty of contempt of Court. 7. We will come to the illustrations presently. But we will first deal with the effect of restoration of the suit on the enforceability of the interlocutory orders passed before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me alienations, the alienations would not ipso facto become invalid and unenforceable on the restoration of the suit. The plaintiff will have to take other appropriate proceedings to avoid that alienation. That is because when the alienation was made it was in accordance with law and not contrary to any order of the Court. Further, the rights of strangers or third parties are brought into play during that time and simple restoration of the suit would not ipso facto affect the validity of the alienation. Likewise, there was an injunction before the dismissal of the suit, if the defendants enters upon possession upon the suit land after the dismissal of the suit for default, no proceedings for contempt of Court can be taken against him after the restoration of the suit. That is also because the defendant entered upon possession of the land after the suit was dismissed and when the injunction order was not actually in force though it was revived later with the restoration. But these instances or illustrations cannot affect the general rule that when the suit is restored the interlocutory orders and their operation during the period of interregnum are revived. 10. There is ample sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no difficulty but where there no such express reference it is a question of construction. As a matter of general rule I would say that the intention would be to restore the suit and all incidental matters. It is as if when the suit is dismissed, the record of the suit was sent to the record room and when restored, the whole bundle was brought back to the Court file with all the matters contained in it. If there is anything expressly appearing against the view that all interlocutory matters are restored, then one would hold that they are not so restored. In the absence of such a thing I would hold that the suit and all incidental matters are restored to file. 11. In that view, the learned Judge held that the injunction petition, the order passed on it by the District Munsif , the refusal to grant the injunction by the District Judge and the revision petition to the High Court were all restored because they were in the nature of pendants to the suit. We need not add more authority in support of the view we have taken. Sri Bapi Raju however relies on Jali Basappa v. Heerada Rudrappa. That was a case of alienation and as we have said, the mere fact of restoration would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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