Malimath, J.:— This execution second appeal is by the original defendant-3 against the decree passed by the Civil Judge at Hassan in Regular Appeal No. 84 of 1972 confirming the order passed on I.A 6 in Original suit No. 202 of 1966 by the Munsiff, Channa—rayapatna.
2. Respondent-plaintiff instituted Original Suit No. 202 of 1966 for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property. During the pendency of the suit, he obtained an interim order of injunction. That suit came to be dismissed. Regular Appeal No. 149 of 1967 filed against the said decree was also dismissed. Regular Second Appeal No. 892 of 1968 filed against the said decree was also dismissed by this Court on 5th July, 1971. During the pendency of this litigation, the plaintiff had the benefit of the interim order of injunction.
3. The appellant filed an application under Section 144 of C.P.C for restitution on the ground that on the strength of the interim order passed in the suit, she was dispossessed and therefore, she is entitled to restitution. The application was resisted on the ground that the remedy of the appellant was not by way of an application under Section 144 of C.P.C but by means of a regular suit. This objection was sustained and the application of the appellant was dismissed. The order has been affirmed by the learned Civil Judge. Hence, this execution second appeal.
4. The suit being one for permanent injunction, the fact that the plaintiff's suit has been dismissed resulting in the vacation of the interim order of injunction granted during the pendency of the suit, does not, in my opinion, entitle the appellant to seek restitution by means of an application under Section 144 of C.F.C The only remedy for the appellant, in the circumstances, is to file an appropriate suit for necessary reliefs.
5. The plaintiff by obtaining an interim order of injunction prevented the defendant from interfering with his alleged possession. The interim order did not direct delivery of possession by the defendant to the plaintiff. The dismissal of the plaintiff's suit for permanent injunction on the ground that he was not in possession on the date of suit, does not amount to conclusively holding that the defendant was in possession on the date of suit. It may be that the defendant was also not in possession. If in such a case restitution is ordered it would amount awarding possession to the defendant in the absence of adjudication of his right, which can only be made in a regular suit brought by him. Section 144 or Section 151 of C.P.C cannot be invoked to give positive relief to the defendant which relief he can secure in a suit brought by him. The view I have taken also accords with the view taken by the Rajasthan High Court in Baa Singh v. Khiwala, (I.L.R 9 Rajasthan page 5).
6. As I am agreeing with the Courts below that the proper remedy available to the appellant is to institute a suit, this appeal has to fail.
7. Subject to the above observation, this appeal is dismissed without costs.