PARMESHAR SINGH Vs. SITLADIN DUBE

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of an application for restitution and compensation under Section 144, Civil P.C. Suraj Narain Pal took a perpetual lease from the zamindar of sir lands measuring 35 bighas odd and obtained possession. The lessee's rights were subsequently sold to Sitladin and Bal Gobind, defendants- respondents. Later on the zamindar sold his rights to Jagarnath and others, the plaintiffs-appellants. A suit was brought for. recovery of possession by avoiding this lease and it was first decreed by the first Court on 21 January 1925. The plaintiffs, immediately thereafter obtained delivery of possession of the property on 5 March 1925. The defendants appealed to the lower appellate Court which allowed the appeal and dismissed the suit on 17 February 1926. Two in fructuous applications for redelivery of possession were made and were struck off. On 5 March 1925, the plaintiffs obtained delivery of possession of the lands from the defendants. Their prayer for mesne profits and for compensation could not be granted at that time as there was a stay order issued by the High Court. The stay order was discharged shortly afterwards, but no fresh application for mesne profits or compensation was made by the plaintiffs and they waited till the disposal of the second appeal. The High Court dismissed the second appeal and affirmed the decree of the District Judge on 13 June 1929.

(2.) On 2 September, 1929, the defendants filed the application out of which this appeal has arisen for recovery of the value of standing crops as well as mesne profits from 5 March 1925 till the 5 October 1926. The plaintiffs objected to this application on the ground that it was barred by limitation, that it was not maintainable and that the amount of damages claimed by the defendants was excessive. The first Court held that the application was barred by time under Art. 181, Limitation Act, and also held that it was not maintainable. The lower appellate Court has come to the conclusion that Art. 181 applies and that time began to run from the date of the High Court's decree and therefore the application was not barred by time. It has further held that it is maintainable. Before the lower appellate Court it was agreed by parties that the mesne profits and compensation should be assessed at a round figure of Rs. 1,600, in case the application of the defendants was allowed. The learned Judge has accordingly granted this amount to the defendants. The plaintiffs came up in appeal to the High Court, and the Bench before which the case came up first for hearing preferred it to a larger Bench in view of a considerable conflict of opinion that prevails in the various High Courts. The two main questions which arise in this case are : (1) whether the proceeding under Section 144, Civil P.C. is an execution proceeding, and (2) the point of time from which limitation would begin to run.

(3.) It is obvious that if the proceeding were an execution proceeding then Article 182, Limitation Act, would be applicable and there would be a fresh start for purposes of limitation from the date of the High Court's decree and the application would therefore be well within time. On the other hand, if it be not an execution proceeding then obviously Art. 182 would not apply, and in the absence of any other particular article the residuary Art. 181 would be applicable under which the period of limitation would begin to run from the date when the right to apply accrued. The question would then arise whether the right to apply accrued on the passing of the lower Court's decree which reversed the first Court's decree or from the time of the High Court's decree which finally upheld that reversal. So far as the rulings of this Court are concerned there seems to be a uniformity that the proceeding cannot be regarded as an execution proceeding. No doubt different opinions have been expressed in other High Courts, but there too there is considerable divergence. In these circumstances, unless a very strong case were made out for overruling the decisions of this Court, I would not be prepared to depart from the view taken in a series of decisions of this Court.