LOKE NATH SINGH Vs. MAHABIR SINGH

JUDGEMENT

(1.) The plaintiffs who are the appellants instituted six suits for recovery of possession and mesne profits against a number of persons. The suits were tried together and decreed in 1915, a lump sum for mesne profits being afforded jointly against all the defendants. On appeal to the High Court by the defendants it was ordered that the liability of the defendants for mesne profits should be separately ascertained. This was finally effected on 23 December 1926. Prior to this however the decree-holders had realized the entire mesne profits from some only of the judgment-debtors, this resulting in mesne profits being realized from each of such judgment debtors in excess of the amount for which he was subsequently found to be liable. Consequently these judgment-debtors applied for restitution by an application dated 5 February 1927.

(2.) In this application the judgment-debtors asked for restoration of the whole amount that had been realized from them by the decree-holders. On 31 March 1928, an order for restitution was passed directing that the sum realized from each of the judgment-debtors, less the amount due from him in respect of the plaintiffs decretal dues and interest should be restored. An appeal by the plaintiffs against this order was dismissed by the District Judge on 20 December 1928. The amount to be restored to each judgment-debtor was finally ascertained on 18 March 1929. On 14 March 1932, the judgment-debtors presented the present applications for the amounts which they claimed. The decree-holders pleaded limitation, but this plea was overruled by the first Court following the Full Bench decision in Balmakund Marwari V/s. Basanta Kumari Dasi 1925 Pat 1, in which it was held that an application for restitution was not an application for execution and was governed by Art. 181, Limitation Act.

(3.) An appeal to the District Judge Was dismissed. In this second appeal it is pointed out by Mr. Bose, for the appellants, that the decision in Balmakund Marwari V/s. Basanta Kumari Dasi, 1925 Pat 1 has been overruled by the later Full Bench decision in Bhaunath Singh V/s. Thakur Kedar Nath Singh, 1934 Pat 246, where it Was held that an application for restitution is an application for execution and is therefore governed by Art. 182 and not Art. 181, Limitation Act. The case which was eventually decided by the Full Bench in Balmakund Marwari v. Basanta Kumari Dasi, 1925 Pat 1, first came before a Division Bench consisting of Dawson Miller, C.J. and Jwala Prasad, J., and is reported in Basanta Kumari Dasi v. Balmakund Marwari 1928 Pat 371. The Division Bench held that an application for restitution is an application for execution to which Art. 182 applies.