UJAGAR SINGH Vs. LIKHA SINGH

JUDGEMENT

(1.) This is a second appeal. It arises in this way. One Dhyan Singh, the father of the present plaintiff appellant, had occasion to bring a suit for pre-emption. On 18 January 1930 a decree was passed in favour of Dhyan Singh for pre-emption upon payment of a sum of Rs. 1500. This sum was payable as to Rs. 469 to the vendor, Gaya Singh, and as to Rs. 1031 to Likha Singh who was the original purchaser. The reason why those payments were to be made in that way was, apparently, that out of the original purchase price of Rs. 1500 a sum of Rs. 469 still remained due to the original vendor. There then follows the sequence of events which have given rise to this appeal. This appeal turns entirely on a point of limitation and it is, therefore, necessary to observe the dates with some care. The original decree was passed, as I have said, on 18 January 1980. The payments into Court were made immediately afterwards. In due course Likha Singh filed a first appeal against the pre-emption decree and on 9 January 1931, that appeal was allowed and a decree was passed dismissing the original suit. Now, at that point the position was that there was no pre-emption and, accordingly, subject to anything that might have intervened, Dhyan Singh would have been entitled to get back the monies he paid into Court.

(2.) Several things, however, had happened in the meantime. On 30 January 1930 and again in December 1930 Likha Singh had withdrawn an aggregate sum of Rs. 384-3-0 out of Court. It will be noticed that both "those dates are prior to the decision of the first appeal. The way in which Likha Singh withdrew those monies was this. It will be (remembered that out of the total sum of Rs. 150. originally paid into Court Rs. 469 stood in Court to the credit of Gaya Singh, while Rs. 1031 stood in Court to the credit of Likha Singh. Likha Singh happened to have a money decree against Gaya Singh on another account altogether. In execution of that money decree, Likha Singh attached and ultimately obtained payment out of Court of this sum of Rs. 384-3-0 out of Rs. 469 standing to the credit of his judgment debtor, Gaya Singh.

(3.) On 24 of February 1931, which was after the decision of the first appeal, another person named Daya Mahesh, who is defendant-respondent 2 to the present appeal, withdrew Rs. 163-8-0 out of Rs. 1031 standing in Court to the credit of Likha Singh. Daya Mahesh had a decree against Likha Singh and he executed it by attaching Likha Singh's money in Court to the extent of Rs. 163-8- 0. Meanwhile Dhyan Singh had filed a second appeal in the suit. This was dismissed by the High Court on 23 November 1933. On 23 November 1936, exactly three years after the date of the dismissal of the second appeal Dhyan Singh's son, the present plaintiff appellant, made the present application under Section 144, Civil P.C. for the recovery from Likha Singh of the sum of Rs. 547-11- 0 made up, as to Rs. 384-3-0 of the sum withdrawn in the year 1930 by Likha Singh and, as to Rs. 163-8-0, of the sum withdrawn by Daya Mahesh in February 1931 which sum had gone to discharge a judgment debt for which Likha Singh was liable. To this application under Section 144, Civil P.C. both Likha Singh and Daya Mahesh were made respondents. As regards Daya Mahesh he can be disposed of in a very few words. He was never a party to the suit and, accordingly, it is conceded that as against him the proceedings under Section 144, Civil P.C. are misconceived. The suit as against him must be dismissed with costs. As regards Likha Singh, however, the matter is not so easy. The defence raised by Likha Singh was one of limitation. The point can be put very shortly. He says that the proper article of limitation is Art. 181 which allows a period of three years from the time " when the right to apply accrues." He says that the right to apply for restitution under Section 144, Civil P.C., first accrued, as regards Rupees 384-3-0 when the first appeal was allowed on 9 January 1931 and, as regards the sum of Rupees 163-8-0, on 24 February 1931 when it was withdrawn by Daya Mahesh. He says, accordingly, that this application was well out of time and must be dismissed. That view of the matter has commended itself to both the lower Courts and it is from their orders dismissing the application that this second appeal has come to me.