HARISH CHANDRA SHAHA Vs. CHANDRA MOHAN DASS

JUDGEMENT

(1.) An ex parte decree for rent; was obtained against the present appellants and they succeeded in having that decree set aside. On the rehearing of the case the suit against them was dismissed with costs. They applied to the Court of First Instance by one application for execution of the final decree for costs and for restitution of the amount of the ex parte decree which had been satisfied by them before it was set aside.

(2.) The Lower Appellate Court has held that although the application was in time as regards costs, it was not in time as regards the refund, because the appellants were entitled to apply for the refund immediately on the setting aside of the ex parte decree. The date on which the ex parte decree was set aside has not been stated; but, as the Lower Appellate Court says, it must have been more than three years before the date on which the application in question was made. The learned Judge has accordingly held, applying Art. 178 of the second schedule of the Limitation Act, that that application was barred so far as the refund was concerned.

(3.) The main contention before us, and in fact, the contention on which all the other arguments which have been addressed to us depend, is that the Lower Appellate Court was in error in holding that, the right to apply accrued on the setting aside of the ex parte decree, and that it should have held that the right accrued on the passing of the final decree dismissing the suit against the appellants, because, until the suit was finally dismissed, the appellants could not tell whether they might not ultimately be obliged to satisfy the decree. We think that there is nothing in this contention. The decree which had been satisfied was the ex parte decree. Since that decree was set aside, the appellants were entitled to a refund. They were in no way bound to allow the amount which they had already paid to remain in the decree-holder's hand in case the suit should eventually be decreed against them.