DEO NARAIN CHAND Vs. KALI CHARAN

JUDGEMENT

(1.) This appeal arises out of an application under Section 144 lead with Section 151 IPC which has been dismissed by the lower courts.

(2.) It appears that the Appellant filed a suit for recovery of joint possession over certain property which was dismissed on 2-4-1932. This order was set aside in appeal on 14-12-1933 and in execution of this decree the Plaintiff obtained joint possession of the property on 3-5-1934. The second appeal from the decision of the appellate court was allowed by this Court in 1936 and the Plaintiff's suit was dismissed. A Letters Patent appeal against the decision of this Court was rejected. On 2-6-1941 the Defendants made an application for restitution of the property over which possession had been delivered to the Plaintiff in pursuance of the decree of the lower appellate court. This application was allowed and possession over the disputed property was delivered to the Defendants. The Plaintiff filed an appeal against the order granting restitution and it was allowed on 14-1-1943. On 7-2-1943 the Plaintiff again made an application for restoration of possession of the property over which possession had been delivered to the Defendants. Tilakdhari, who was one of the Plaintiffs in the case, died during the pendency of this application In the meantime the Defendants filed an appeal in this Court against the order dated 14-1-1943 allowing restitution of the property to the Plaintiff. This Court stayed the proceedings for restitution started on the application dated 7-2-1943. On 15-8-1946 the Defendants' appeal was rejected by this Court. After the stay order was vacated the Plaintiff made an application for hearing of the application under Section 144. The heirs of Tilakdhari did not make any application for their being brought on the record in place of Tilakdhari deceased. It, however, appears that in connection with another application made by one of the Plaintiffs an order was passed on 12-5-1947 for impleading them as co Plaintiffs on the record. The Plaintiff's application for restitution was allowed on 22-5-1547. An appeal was filed against this order by the Defendants and on 5-1-1948 this appeal was allowed to this extent that the Plaintiff Bankey Chand was held to have no authority to get the heirs of Tilakdhari brought on the record and to take possession over the en ire property. The appellate court upheld that possession of Bankey Chand to the extent of five-sixths of the property and in respect of the remaining one-sixth share, which belonged to Tilakdhari, the master was left open for decision. On 29-3-1948 Deo Narain and Smt. Lachminiya, heirs of Tilakdhari, made an application to the trial court that they should be brought on the record in place of Tilakdhari and the restitution proceedings in respect of their one-sixth share in the property should be started and they should be delivered possession over this property. This application was opposed on behalf of the Defendants. It was contended that the application was barred by limitation as it had not been made within three years of the date on which the cause of action accrued to Tilakdhari or the applicants for obtaining restitution of the property. Both the courts below upheld the objection of the Defendants and dismissed the application.

(3.) The only point for consideration in this appeal is whether the application dated 29-3-1948 made by Deo Narain and Smt. Lachhminia is barred by limitation. The lower appellate court seems to have committed some mistake with regard to certain facts. It has mentioned in its judgment that the application of Tilakdhari in respect of one sixth of the property had been dismissed, whereas it was not actually dismissed but was not disposed of probably because the heirs of Tilakdhari had not been brought on the record. The other mistake which has been committed by the lower appellate court is that it described the application dated 29-3-1948 as a fresh application by Deo Narain and Smt. Lachhminia for the restitution of their one sixth share in the property in dispute. In fact, this was not a fresh application but it was merely an application for the substitution of their names in place of Tlakdhari deceased in the proceeding which had already been started by him under Section 144 Code of Code of Civil Procedure along with the other Plaintiffs, and for the revival of the proceedings with respect to the one-sixth share about which no order had been passed by the court below. It has not been disputed before me that Article 181, which is a residuary Article, has application to the present case. It has been contended on behalf of the Appellants that there was no period of limitation prescribed in a proceeding under Section 144 Code of Code of Civil Procedure for bringing on record the heirs of the parties to that proceeding, and in view of this fact the application dated 29-3-1948 could not be said to be barred by limitation and the derision of the courts below to that effect was incorrect. Learned Counsel for the other side has not been able to satisfy me that there is any provision in the Limitation Act or elsewhere which prescribes a particular period of limitation within which the heirs of the parties to a proceeding under Section 144 Code of Code of Civil Procedure should be brought on the record. In the circumstances it cannot be said that the application dated 29-3-1948 was barred by limitation.