KARTHIYANI AMMA Vs. SREEDHARAN

JUDGEMENT

(1.) Defendants 8 to 11 are the appellants in this Second Appeal. The Appeal is from an order rejecting an application for restitution. The suit was filed on behalf of the Thrikkunnapuram Devaswom for recovery of possession of property on the basis of a lease deed of 1071. A prior suit has been filed on behalf of the Devaswom in O.S No. 132 of 1086 for recovery of possession of the plaint property on the basis of the same lease deed and a decree has been obtained by the Devaswom. But that decree was not executed and it became barred by limitation. In the present suit the defendants contended that the suit was barred by res judicata by reason of the decree in O.S. No. 132 of 1086. The Trial Court repelled this contention and decreed the suit on 8.10.1104. The Devaswom obtained delivery of possession of property as per this decree on 16.3.1105. The 5th defendant appealed from the decree and the District Court allowed the appeal and dismissed the suit on 12.2.1107. From this decision the Devaswom filed a second appeal before the erstwhile Travancore High Court. In the meanwhile the management of the Devaswom was assumed by the Travancore State and the State was impleaded as additional appellant in the case. The Second Appeal was dismissed by that High Court on 6.11.1114. On 9.3.1115 the State filed a petition for reviewing the judgment of the High Court. That petition was dismissed by the High Court on 30.2.1122. On 8.7.1124 the appellants and their deceased mother applied for redelivery of the property. The Trial Court allowed the application and ordered redelivery. The appeal filed from that order was allowed by the District Court. That court held that the application for restitution was barred by limitation. This Second Appeal is from that order.

(2.) The only question for consideration in this Second Appeal is whether the application for restitution is barred by limitation. It is not disputed that an application for restitution under the Code of Civil Procedure is governed by Art.166 of the Travancore Limitation Act corresponding to Art.182 of the Indian Limitation Act. It was so held by a Full Bench of the Travancore High Court in Chacko v. Uzhithiraru ( 30 TLJ 306 ). It is true that there is difference of opinion among the various High Courts in India on this question. The Calcutta, Allahabad and Lahore High Courts have held that it is Art.181 of Limitation Act that applies to applications for restitution (Vide Ashutosh v. Kumad Kamini AIR 1933 Cal. 422 ; Giwa Ram v. Nand Ram, 44 All. 407; Chanda Sing v. Bishen Singh, AIR 1924 Lah. 166 ; Gujar Mal v. Narain Singh, 32 Punj. L.R. 395). On the other hand the Bombay, Madras, Patna and Rangoon High Courts and the Chief Courts of Nagpur and Oudh have held that an application for restitution is an application in execution and that therefore Art.182 of the Limitation Act applies to such an application (Vide Somasundaram v. Chockalingam, 40 Mad. 780; Unnamalai Ammal v. Mathan, 33 MLJ 413 ; Punjapakesa Iyer v. Natesa Pathar, 51 MLJ 161; Sudalimuthu Pillai v. Sudalimuthu Pillai, 17 MLJ 623; Kargodi Gouda v. Ningan Gouda, 41 Bom. 625; Hamidalli v. Ahamadalli, 45 Bom. 1137; Souba v. Parasharam, 76 Ind. C. 255 Nag; Sant Sahul v. Chautai Kumari, 92 Ind. C. 23 Oudh; Chandika Singh v. Bithal Das, AIR 1931 Oudh 51; Muthukarumappan Chetti v. Annamalai, 11 Rang. 275; Pathak Bhaumath Singh v. Thakur Kadar Nath Singh, 13 Pat. 411. The Travancore High Court preferred to adopt the view taken by Bombay, Madras, Patna and Rangoon High Courts and the Chief Courts of Nagpur and Oudh. We also prefer to take that view and hold that an application for restitution is an application in execution and that it is Art.182 of the Indian Limitation Act that applies to such an application.

(3.) The further question for consideration is whether the application filed by the defendants on 8.7.1124 is barred under Art.182 of the Limitation Act. The High Court decree in the case was passed on 6.11.1114 and if the period of limitation is calculated from that date the application will clearly be barred by limitation and it is argued for the appellant that the period of limitation could be calculated from 30.2.1122, the date of dismissal of the review petition. For this position reliance is placed on sub cl. 3 of Art.182. According to that sub clause where there has been a review of judgment the period of limitation should be calculated from the date of the decision passed on the review. The learned Advocate for the appellants argues that the date of the decision passed on the review is the date on which the review petition is disposed of. According to the learned counsel even if a petition to review the judgment is dismissed the period of limitation for execution of the decree should be calculated from date of that dismissal and not from the date of the decree. We do not think that this position is correct. Sub cl. 3 of Art.182 applies only when there has been a review of the judgment. The words used in the sub clause are: (where there has been a review of judgment) the date of the decision passed on the review. This evidently means that the sub clause will apply only when the judgment has been actually reviewed, or in other words when the petition to review the judgment has been allowed. In the case of an appeal the words used in sub cl. 2 are: "(where there has been an appeal). It is not necessary that the appeal should be allowed. But in the case of a review under sub cl. 3 it is necessary that the petition to review the judgment is allowed. It cannot be said that when a petition to review the judgment is dismissed the judgment is reviewed. That it is so is clear from the wording of O. 47 R. 4(1) which reads thus: Where it appears to the court that there is not sufficient ground for a review it shall reject the application. From this it is clear that when the application is rejected the judgment is not reviewed.