GANESH DASS Vs. AMAR NATH

JUDGEMENT

(1.) AN important question of law as regards interpretation of the expression "where there has been a review of judgment" occurring in column 3 of Article 182(3) of the Limitation Act 1938 is involved in the present Civil Misc. Second Appeal which is directed against the judgment and decree of the learned District Judge, Udbampur, dated 25 -7 -1975, whereby he had dismissed the appeal against the order of the Sub -Judge, Udhampur, dated 30 -4 -1974.

(2.) - The facts of the case are not in dispute and may be briefly noticed first. One Ram Saran brought a suit for possession of 5 marlas of land comprised in Khasra No. 1281/Min situate at Udhampur town. The suit was decreed on 1 -10 -69 and the decree was confirmed by the District Judge, Udhampur on 21 -4 -1970. The defendant challenged the same in a second appeal before this Court but the appeal was dismissed in limine on 9 -6 -1970. Against the dismissal of the appeal in limine, the defendant moved a review petition in this court, in which a notice was issued to the other side but subsequently the review petition itself was dismissed on 23 -12 -1971. During all this time, the decree holder plaintiff presented an execution petition before the learned Sub -Judge. Udhampur. The judgment -debtor raised an objection to the execution application on the ground that the same was barred by time as the decree was sought to be executed after three years from the final order. The plea of the judgment debtor prevailed with the learned Sub -Judge, Udhampur, and it was held that the execution application was time barred vide order dated 30 -7 -74. An appeal against the said order was also dismissed as the plea about the execution petition being time barred was accepted by the learned District Judge, Udhampur also.

(3.) WHILE conceding that the decree could be executed within three years from the date of the final order, it is urged by Mr. Bakshi, learned counsel for the decree holders appellants that the time in this case would start running from the date when the review petition was dismissed by this court on 23 -12 -71 and not from 9 -6 -70 when the second appeal filed by the defendant not judgment -debtor was dismissed by the High Court. It is contended by Mr Bakshi, that once notice is given in a review petition to the other side by the court, the court undertakes to review the judgment and the subsequent dismissal of the review petition was irrelevant. Further argues Mr. Bakshi, as the review petition had been admitted to hearing, it was a case to which Article 182 (3) of the Limitation Act was attracted and he starting point of limitation would be the date of the decision passed in the review petition. Mr. Bakshi has relied upon Bhawanipora Banking Corporation Ltd. vs. Gouri Shanker Sharma AIR 1950 S. C. 6 Kalika Dass and others Vs. Kerarimal Agarwalla AIR 1962 Assam 136 in support of his contention