FAZALAR RAHMAN Vs. ABDUL SAMAD

JUDGEMENT

(1.) This is an appeal against an order granting an application for restitution. The original decree was passed on the 12 June 1916. In execution of that decree certain money was realised by the appellants on the 17 February 1917. The decree was reversed on appeal on the 7 January 1920. There was a further appeal to this Court and the decree of the Appellate Court was affirmed on the 20 December 1921. This application for restitution was made on the 9 February 1923. On the authorities it is clear that the period of limitation is three years under Art. 181 of the Limitation Act see Asutosh Goswami V/s. Upendra Prasad Mitra 38 Ind. Cas. 17 : 21 C.W.N. 564 : 24 C.L. 467. The point we have to decide is whether this period of limitation runs from the 7 January 1920 when the decree of the first Court was set aside or from the date of its confirmation on second appeal to this Court.

(2.) In our opinion the lower Courts are right in holding that the time should be calculated from the later date. Though the facts are not the same we think the principles in the case of Uma Charan Chakrabarti V/s. Nibarun Chandra Chakrabarti 75 Ind. Cas. 2 : 37 C.L.J. 452 : A.I.R. 1923 Cal. 389 are applicable in the present case. There attention has been drawn to the lucid exposition of Mr. Justice Dwarka, Nath Mitter in the case of Ram Charan v Lakhi Kanta 7 B.L.R. 704 : 16 W.R. 1 of the true effect of the disposal of an appeal upon the decree of the primary Court:-- "If the decree-of the lower. Court is reversed by the Appellate: Court, it is absolutely dead and gone. If, on the other hand, it is affirmed by the Appellate Court, it is equally dead and goner though in a different way, namely, by being merged in the decree of the Superior Court, which takes its place for all intents and purposes. Both the decrees cannot exist simultaneously." On the passing of the. decree by. this Court in second appeal the petitioners had a right to apply for restitution within three years of that decree, and this the have done.

(3.) We accordingly dismiss this appeal. We make no order as to costs.