SARAJ BHUSAN GHOSH Vs. DEBENDRA NATH GHOSH

JUDGEMENT

(1.) In this case, there was a suit for redemption and the suit was in July 1922 decreed and an order made for redemption and restoration of possession. Possession was delivered through Court to the plaintiffs; but, on an appeal being brought, the decree was set aside on 9 July 1924. An appeal was brought to the High Court which was dismissed and a further appeal was brought under the Letters Patent which was also dismissed on 7 February 1928. On 27th June 1929, the present appellants made an application for restitution under Section 144, Civil P.C. The first Court gave effect to the claim and ordered restitution. The second Court has dismissed their application as being time barred under Art. 181 of the schedule to the Limitation Act, 1908.

(2.) Mr. Roy Choudhuri who appears for the appellants in this case has given us a most careful and interesting argument and ho asks us, in effect, to deal with two points. First of all, he asks us to say that an application under Section 144 is an application in execution and that, in the present case, the article which governs it is Art. 182. There being certain rulings of this Court against him on this point, his argument before us is really directed to persuade us to differ from those rulings and to refer the matter to a Full Bench. The second question upon which Mr. Roy Choudhuri has given us a careful argument is this: On the assumption that an application under Section 144, Civil P. C, is not an application in execution, he still contends that in the present case the time from which the period of limitation starts is 7 February 1928-- the dismissal of the Letters Patent appeal and not the date in July 1924 when the decree in the redemption suit dismissed the claim for redemption. On that matter also there is authority against the contention put forward by Mr. Roy Choudhuri and there again the purpose of his argument is that we should refer that question to a Full Bench.

(3.) We have been taken through all the cases and the short effect of them, in my judgment, is this: since the Code of 1908 has altered the language of Section 144 and placed the section in a different part from the previous Section 583, there has been one ruling, Madan Mohan v. Nogendra Nath [1917] 39 I.C. 640 by a Judge sitting singly as a taxing Judge, namely Chatterjee, J., in favour of the view that an application under Section 144 is an application in execution. Otherwise, the Calcutta cases come to this whether the matter has been reasoned out or whether the matter has been dealt with obiter or otherwise the cases do show an opinion that an application under Section 144 is not an application in execution. On each of the cases cited, there is some room for comment. There is, first of all, the case of Harish Chandra V/s. Chandra Mohan [1901] 28 Cal. 113 where the opinion of Stevens and Pratt, JJ., was expressed tentatively and obiter. There is also the case of Gangadhar Marwari V/s. Luchman Singh [1910] 6 I.C. 125 which appears to have been directly concerned with the old Code and which while it takes the view that Art. 181 is applicable has also in it certain observations which tend in an opposite direction. There is the case of Ashutosh Goswami V/s. Upendra Prasad [19151] 38 I.C. 17.