KALIKADAS LAHIRI AND ORS. Vs. KERARIMAL AGARWALLA

JUDGEMENT

(1.) THIS is a miscellaneous appeal arising out of an execution proceeding. The Respondent obtained a money decree on the 1st July 1950, against the present Appellant The suit was for recovery of Rs. 6,140/ - but on the date of hearing none of the parties appeared and the Subordinate Judge after considering the evidence on the record decreed the suit in part for a sum of Rs. 2,628/ -. This decree was put into execution and the application for execution was filed on the 7th May 1954. On the face of it, the application was beyond three years. The contention of the decree -holder is that after the suit had been decreed for Rs. 2,628/ - an application was made on behalf of the Plaintiff for restoration of the suit under Order 9, Rule 9 and Order 17, Rule 2, Code of Civil Procedure. That application was finally dismissed for default on 31st July 1952. The starting point of limitation according to the decree -holder should be 31st July 1952 - - the date when the application for restoration of the suit was dismissed for default. The Subordinate Judge accepted the contention of the decree -holder and rejected the objections filed by the judgment -debtor. It is against this order that the present appeal has been filed.

(2.) ARTICLE 182 of the Limitation Act deals with the limitation for execution of decrees. Clause 1 of Column III of Article 182 of the Limitation Act gives the starting point of the limitation as the date of the decree or order. Clause 3 of Column 3 of the Article reads as follows: (where there has been a review of judgment) the date of the decision passed on the review." The decree -holder contends that there has been an application for review in this case; though it was styled as an application under Order 9, Rule 9 still the object of the application was to get the suit restored after the decree passed on default, has been set aside. In effect therefore it was an application With a view to get the judgment of the court reviewed. Such an application falls under Clause 3 column 3 of Article 182 of the Limitation Act in order to apply Clause 3 of Column III of Article 182, two things are essential; firstly there must be an application for a review of the judgment and secondly that there "has been a review of the judgment" by the Court. In the present case even assuming that the application for restoration is one for review by giving a wider meaning to the word 'review', still it cannot be said that in the circumstances of the present case, there has been a review of the judgment. The application for restoration was itself dismissed for default and the Court never applied its mind to reconsider the earlier judgment. The decree -holder's counsel points out that if the words "has been reviewed" are given' of restrictive meaning, the cases where the application for review is rejected even on merits will be covered by Clause (1) and not by Clause III of column 3 of Article 182, Limitation Act. We do not think that any such result necessarily follows from giving the interpretation which we propose to give to these words under Article 182 of the Act. The words in Clause 3 are - - "where there has been a review of judgment". In cases where the application for review is dismissed on merits, it may be argued that the court has applied its mind and has considered the correctness of the judgment and has considered on merits the application for review and to that extent there has been a review of the judgment. But in cases where the application for review of for restoration is dismissed for default there has been no case for the court to apply its mind to the judgment and thus it cannot be said that there has been a review of the judgment. In the case of Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma reported in : AIR 1950 SC 6 the following observation by their Lordships of the Supreme Court will be apposite.