MELA RAM Vs. DHARAM CHAND AMRIT LAL

JUDGEMENT

(1.) THIS reference raises a question of limitation. The facts relevant for the determination of this question are not in dispute. Dharam Chand and his brother sued to pre-empt a sale made in favour of llama Nand and obtained a pre-emption decree on payment of Rs. 1,400/ -. The pre-emptors deposited this amount and it was withdrawn by the vendee. The pre-emptors appealed and the District Judge, patiala, by his judgment dated 11-6-1949, varied the trial Court's decree and reduced the amount payable by the pre-emptors by Rs. 500/- to Rs. 900/ -. The vendee appealed to the High Court, but it was dismissed on 28-11-1951. The preemptors thereafter filed an application under Section 144 Civil Procedure Code, claiming refund of Rs. 500/-against the sons of Rama Nand who had died in the meanwhile. This application was made on 11-9-1952. The vendee's sons contested the petition on the ground of limitation and contended that an application lor restitution is governed by Article 181 of the Limitation Act and that the limitation started from 11-6-1949, the date of the judgment and decree of the District Judge, Patiala. This contention was rejected by Subordinate Judge, Raj-pura, as well as by the District judge. In revision petition Gurnam Singh J. (the then Judge of the Pepsu High court and now a Judge of this Court) noticed conflict in various High Courts on this question and referred it to a larger Bench. It has now come to us under the orders of the Hon'ble the Chief Justice.

(2.) THIS question of limitation is divisible in two parts (1) whether an application under Section 144, Civil Procedure Code, is covered" by Article 181 or Article 182 of the Indian Limitation Act, and (2) if Article 181 applies, then whether limitation starts from the date of the decree of the District Judge who varied the decree of the trial Court or from the date on which the second appeal was dismissed by the high Court.

(3.) IN the present case the pre-emptors' case is that an application under Section 144, Civil Procedure Code, is an application for execution and is governed by article 182 of the Limitation Act. It is common ground between the parties that if article 182 is not applicable, then the residuary Article 181 applies to such an application.