T S KRISHNAMOORTHY IYER Vs. GEORGE VADAKKEL

JUDGEMENT

(1.) THIS appeal raises two questions on which there is considerable divergence of opinion; and they are: (1) whether time under Art. 11a, Limitation Act, runs from the date of the order of the executing Court on a claim petition or of the High court on a petition for its revision; and (2) if the starting point be the former, can the time taken by the revision proceeding be excluded from computation under S. 14 of the limitation Act.

(2.) THE suit property, having been purchased by the plaintiff in court sale, was delivered to him by process of Court. THE first defendant, who had been in possession of the property as mortgagee under the purchaser in an earlier court sale, applied under 0. 21 R. 100 for restoration of possession to him and it was allowed by the executing Court on 18-3-1122. THE plaintiff's petition for revision of that order was dismissed by the High Court on 25-4-1122. THE present suit under 0. 21 R. 103 C. P. C. was instituted on 23-4-1123. It was allowed substantially by the Munsiff, but has been dismissed on appeal by the Subordinate judge as barred under Art. 11a, Limitation Act. THE plaintiff has come up in second appeal.

(3.) EARLIER, the Cochin High Court had also expressed the same view in Raman Menon v. Lakshmi Amma (21 Cochin 436 F. B.) thus: "on a plain construction of the Section, therefore, the order referred to in Art. 7 (corresponding to Arts 11 and 11a of the Indian limitation Act) is the order of the first Court . No doubt, when an appeal lies against such an order. . . the order referred to in the Article must refer to the order passed in appeal. . . . It may be that when a review is granted and on the re-hearing the original order is confirmed, limitation would reckon only from the date of the order passed on review. But when the review was dismissed even after notice to the opposite party limitation runs from the date of the original order. We fail to see why a revision petition which was admitted and heard after notice to the opposite party but which was dismissed, should stand on a different footing from a review petition. . . . It may be that a revision lies against an order passed under S. 328 C. P. C. (corresponding to 0. 21, R. 103 of the present Code) and that, when that order was set aside on revision, no suit need be brought. But this applies to the case of a successful review also. It is no doubt open to a party against whom an order under S. 328 is passed, either to apply for a review of that order or to prefer a revision petition against it But this cannot prevent the running of time under Art. 7 of the Limitation Regulation, which begins to run from the date of the order. If, instead of instituting a suit referred to in S. 328 C. P. C. the party applies for a review of the order or prefers a revision against it and ultimately the review or revision is rejected, he does so at his peril. We are of opinion that if a revision preferred against an order under S. 328 CPC. is dismissed, the order mentioned in the 3rd column of Art. 7 is not the order in revision but the original order.