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Showing contexts for: actionable wrong in Tatanagowdra Bhimana Gowd And Ors. vs Patel Siddalingana Gowd on 9 March, 1927Matching Fragments
11. If, apart from these objections, the petitioners have an arguable case, the argument runs as follows: Under their decree they secured the reversal of the district Munsif's order. They also secured certain other reliefs, but those may be regarded as unessential, since the mere setting aside of the order rendered it incumbent upon the Court which passed it to do all that it could to undo its effects, that is, to give the petitioners possession and mesne profits. Now a clear assumption underlying this line of reasoning is that possession was obtained by the respondents by force of the order itself; because if it was not so obtained, it could not be restored, and mesne profits awarded for wrongful occupation by the mere undoing of the order. The order, which was passed upon an application to remove the obstruction caused by the counter-petitioner and to effect delivery as per sale certificate, was 'petition allowed'. But although this no doubt gave authority to overcome the petitioners' resistance, it remains true that transfer of possession of the property was effected not by force of the order, but of the decree in the mortgage suit, and of the consequent sale and delivery warrant. The order, in fact, merely prevented the petitioners from resisting execution of the decree. It is true that it was a wrong order, but so too was the sale a wrong sale, and the delivery warrant based upon it wrong also. It is not therefore correct to impute to the order alone the consequence of wrongful, delivery of possession, or to claim that restitution should follow from its reversal. These considerations explain, I think, why it is necessary for one who sets up a jus tertii -to sue to establish the right which he claims to the present possession of the property, and to include in his suit every relief which the wrongful action of the Court gives rise to. If he has lost possession he must sue to recover it, and if he wants damages for loss of possession he must ask for them. He must frame his suit exactly as he would frame it in any other case of wrongful dispossession, and so to sue, in my view, is the only remedy open to him.