NARAYANA VARIAR Vs. KRISHNAN

JUDGEMENT

(1.) The respondents instituted the suit out of which this second appeal arises against the appellant, for refund of part of the consideration which they paid to him under a deed of transfer, Ext. A 1 dated the 14th September, 1949, by which the appellant professed to convey to them the full and absolute rights in a property. Subsequently, by a decree for partition obtained by the appellant's brothers, the respondents were held to have obtained title to the property only to the extent of the appellant's one third share. The decree for partition was passed by the court of first instance on the 28th August, 1953, and was confirmed by the appellate court on the 24th November, 1955. The present suit was instituted on the 15th January, 1958, that is, more than three years after the decree for partition passed by the primary court, but well within three years of the decree of the appellate court. The appellant contended inter alia, that the suit was barred by limitation, and it is this contention alone that was pressed in second appeal. The contention was repelled by the first court which held that under Art.97 of the Indian Limitation Act, time commenced to run from the date of the appellate decree. In appeal, the point of limitation does not appear to have been argued and it was dismissed on the merits.

(2.) In second appeal, learned counsel contended, that the date of the decree of the primary court and not that of the decree of the appellate court, must be regarded as the starting point under column 3 of Art.97 and relied on Juscurn Bold v. Pirthichand Lal Choudhury ILR 46 Calcutta 670 in which the Privy Council, observing that "under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal", held that the decree of the primary court furnished the starting point. The decision is authority for holding, that time must be reckoned from the date of the decree of the primary court, and so done, the suit was out of time.

(3.) It was also averred in the plaint, that the respondents lost possession of 2/3 share of the property pursuant to the decree for partition on the 16th January, 1957, and in Para.7 of the plaint this was relied on, as one of the dates on which the cause of action accrued. In answer, learned counsel relied on the following observations of the Privy Council in the case cited:-