VASUDEVAN Vs. CHOYIKUTTY

JUDGEMENT

(1.) This Second Appeal has been referred by Raghavan, J., to, a Bench on account of the conflict of judicial opinion on the vexed question it raises, namely, whether an application for restitution under S.144, C. P. C., is an application for execution of a decree within the purview of Art.182 of the Indian Limitation Act, 1908. Even under the present Limitation Act, XXXVI of 1963, it remains a question of some difficulty.

(2.) The facts are thus: The respondent plaintiff, having obtained an assignment of the landlord's rights, instituted this suit in 1944 for recovery of the property with arrears of rent. The 3rd defendant was an under tenant of the property, who himself has sublet it to the 4th defendant. The Munsiff Kozhikode - II, decreed the suit on February 28, 1945; and in execution thereof the respondent obtained possession of the property on January 12, 1946. The 3rd defendant appealed against the decree in so far as it concerned arrears of rent. It was allowed by the Subordinate Judge. The plaintiff took the matter in Second Appeal before the Madras High Court, when the entire decree was set aside, and the suit was remitted to the Munsiff. That was on April 23, 1952. Though thereafter the Munsiff decreed the suit again on October 28, 1952, it was reversed by the Subordinate Judge, on appeal by the 3rd defendant, and the suit remanded again to the Munsiff on November 30,1953. Then the Malabar Tenancy Act came to be amended by Act VII of 1954 interdicting suits for eviction of tenants by assignees (inter vivos) of landlords within two years of the assignment. Though the rule was not retrospective (vide: Neelakandhayya Pillai v. Sankaran 1961 KLT 755 , and more than 10 years had elapsed after the assignment in favour of the plaintiff, the Munsiff dismissed the suit on December 23, 1955, as barred by that rule; and it is become final now. On April 7, 1956, the 4th defendant applied for redelivery of the properties to him with mesne profits, under S.144, CPC, and the respondent plaintiff contended it to be barred by limitation.

(3.) The learned Advocate General appearing for the appellant contends that an application for restitution is not an application in execution of any decree, and is governed by Art.181 of the Limitation Act and that the present application filed beyond three years of the accrual of the right to restitution on cancellation of the original decree by the High Court is barred by limitation.