MIR FATHEULLA BABAJAN Vs. SYED NAZIR SAB

JUDGEMENT

(1.) This appeal is directed against the order of the I Additional City Civil Judge, Bangalore City, in Miscellaneous Appeal No. 244 of 1980 dated 11-12-1985 setting aside the order of the I Additional I Munsiff, Bangalore, in Misc. No. 435 of 1975 dated 25-8-1980 dismissing the petition for restitution of the immovable property.

(2.) Briefly set out, the following are the material facts: - Sheik Hyder @ Ameer Sab sued and obtained a judgment and decree against the father of Syed Nazir Sab, Syed Kalaq, Syed Gaffar, Abidabi and Salihabi in O.S.No. 899 of 1954. In pursuance of the decree, a house property was brought to sale in Court auction in Execution Case No. 867 of 1955. The property was purchased by Mir Fatheulla @ Babajan. Meanwhile, the father of Syed Nazir Sab and four others demised and the children were brought on record as legal representatives and the application filed by them for setting aside the sale was in vain. Thereupon, they preferred an appeal to the Civil Judge and the order was set aside and the matter came to be remanded. On remand, the Court confirmed the sale. The order of confirmation was the subject-matter of challenge before this Court in C.R.P.No. 269 of 1959 and the impugned order was set aside and the case was remanded for fresh disposal. During the pendency of the said C.R.P., Mir Fatheulla took delivery of the property on 12-8-1959 and was also recovering the rent thereafter. Govindaraju, Rasheed, Parusab and Mastan Sab were the tenants in respect of the said property. Thus, it is seen that the sale transaction stood confirmed through out the litigation. In the appeal preferred to the I Additional City Civil Judge, Bangalore City, in M.A.No. 244 of 1980, the appellants therein maintained that they are entitled to restitution of the property. The appellants filed an application under Section 144 read with Section 151 of the C.P.C. for an order directing Mir Fatheulla to re-deliver the property to the appellants and also to pay mesne profits. The said petition which is Misc. 270 of 1971 was posted on 5-1-1973 for evidence and it was dismissed for default. A miscellaneous application was filed'in Misc. No. 41 of 1973 under Order 9, Rule 8 of the C.P.C. for restoration. On 10- 10-1975, Misc. No. 41 of 1973 was dismissed on the ground that the proceeding under Section 144 of the C.P.C. is an execution proceeding and that an application for restoration is not maintainable. Subsequently, the appellants filed a petition on 28-11-1975 and evidence was recorded. The I Additional I Munsiff, Bangalore, held after trial that the application filed on 28-11-1975 is barred by time and dismissed the petition. It is against that order that the appeal was preferred before the I Additional City Civil Judge at Bangalore City in M.A.No. 244 of 1980. The Court of appeal set aside the impugned order by allowing the appeal and remanded the case to the trial Court with a direction that the application should be disposed of in accordance with law and the order was passed on 11-12-1985. It is against this order, this appeal is preferred.

(3.) The point for consideration is whether the order of the lower appellate Court in holding that the period of limitation is 12 years in respect of an application filed under Section 144 of the C.P.C. for restitution of property is liable to be set aside.