A KUNDAPPAYI Vs. M NARAYANAN NAIR

JUDGEMENT

(1.) The 13th defendant is the appellant. This appeal concerns the question whether an application for restitution was barred by law of limitation. The facts are: the plaintiff filed a suit as O. S. 438 of 1948 for recovery of money due under a mortgage bond as also for arrears of rent. The court of first instance passed a decree dismissing the claim for recovery of money due under the bond and directing the plaintiff to pay the costs of the 13th defendant. The matter was taken up in appeal by the plaintiff. That court confirmed the decree of the lower court. Then it was taken to the High Court in Second Appeal. In the meanwhile the 13th defendant executed the first court's decree for costs and realised the same from the plaintiff. Thereafter, the High Court reversed the decrees and remanded the case to the lower appellate court. The petitioner plaintiff therefore filed an application in the Trial Court for restitution, i. e., for getting back the amount paid by him by way of costs to the 13th defendant. The 13th defendant raised several objections. The main point raised by him was that the petition was time barred as it was filed more than 3 years after the date of the order of remand in Second Appeal.

(2.) The Trial Court came to the conclusion that the application was barred by limitation, and dismissed the petition on that ground. That court was of the view that Art.181 of the Limitation Act is the article that would apply to the facts of the case and that the starting point of limitation was the date of the order of remand in the Second Appeal. On appeal the lower appellate court reversed that decision holding that the starting point of limitation was the date when the lower appellate court passed the decree in the case after remand, and remitted the case to the court below for a consideration of the other objections.

(3.) It may be recalled that the High Court remanded the case after setting aside the decrees of the lower courts on the ground that the dismissal of the suit by the courts below on the ground of limitation was wrong and directed the lower appellate court to dispose of the case after considering the other points raised by the defendants. Subsequently the lower appellate court passed a decree in favour of the plaintiff and in that decree the direction is that "the appellant is also entitled to his costs of the second appeal and costs here from the defendants 13 and 14".