GOPAL LASKAR Vs. HARIHAR MUKHERJEE

JUDGEMENT

(1.) This appeal arises out of an order for restitution. The material facts are as follows. The respondents had obtained a decree for arrears of rent against the present appellant and in execution of that decree had had the property with which we are concerned put up to sale and had purchased the same in auction. After the sale was confirmed the respondents obtained delivery of possession. Thereafter the present appellant applied to have the sale set aside and on 27-3-1939 the sale was set aside by the original Court. The decree-holders auction- purchasers that is to say, the present respondents, appealed against the order setting aside the sale but that appeal was dismissed on 4-9-1939. In the month of September, 1939, the present appellant recovered possession of the property which had been sold. On 20-7-1942, the application out of which the present appeal arises was filed by the present appellant in which he claimed by way of restitution, mesne profits for the period in which the land in question was in the possession of the decree-holders auction purchasers. The learned Munsif held that the application was not an application Under Section 144, Civil P.C., but could be treated as an application Under Section 151, Civil P.C. He held that the amount of mesne profits was Rs. 575, only and he allowed the application with costs. The respondents before me appealed against this decision and the appeal was heard by the Subordinate Judge, First Additional Court, at Alipore. The learned Subordinate Judge agreed with the learned Munsif that the application was not strictly speaking an application Under Section 144, Civil P.C. but was an application Under Section 151. The learned Subordinate Judge then held that the application was barred by limitation having been filed more than three years after the date on which the sale had been set aside. The learned Subordinate Judge in his judgment held that if the application was in time the amount of mesne profit had been correctly assessed by the learned Munsif at Rs. 575. The appeal was, accordingly allowed with costs, the order of the learned Munsif was set aside and the application,, was dismissed. Hence this appeal.

(2.) It has been argued in the first place on behalf of the present appellant that the application was an application not under Section 144, Civil P.C. but Under Section 151, Civil P.C., and therefore no appeal lay from the order of the Munaif and accordingly the order of the learned Subordinate Judge in the Court of appeal below was without jurisdiction. Reliance was placed for this view on the decision in Tarak Nath Ray V/s. Panchanan Banerji . In that case the question before the Court concerned the amount of court-fees payable on a memorandum of appeal filed against an order passed in a proceeding for restitution Under Section 144, Civil P.C. Mukherjea J. referred to a contention placed before him that the appeal before him might be treated as an appeal against an order Under Section 151 and not as an appeal against an order Under Section 144, Civil P.C. Mukherjea J. in dealing with the argument observed: "Now, an appeal is undoubtedly a creature of statute, and no appeal could possibly lie from an order Under Section 151, Civil P.C.,1 taken by itself." If the matter were res integral I should be inclined to hold that no appeal layi from an order passed on an application under Section 151, Civil P.C. but in my opinion I am bound by the decisions of this Court. The decisions of this Court which are binding on me are all to the effect that an appeal does lie under the circumstances such as those with which I am now concerned. In Sasi Kanta Acharjee V/s. Jalil Baksh it was held that when in a case to which Section 144, Civil P.C. does not apply the Court, acting Under Section 151, exercises the same jurisdiction which Section 144 gives it, the order of restitution so made is appealable. The learned Judges who tried that case observed that they followed earlier decisions of this Court and that no authority of this Court was shown to them in which a different view had been taken. They referred particularly to the case in Gnanada Sundari V/s. Chandra Kumar De . In these two cases the facts were exactly similar to the facts of the present case and these two cases are authority for the view that an appeal would lie. In the case in Tarak Nath Ray V/s. Panchanan Banerji . Mukherjea J. held that the case before him was not the case of an appeal from an order Under Section 151 and consequently his remarks as to the maintainability of an appeal from an order Under Section 151 were really obiter dicta. In any case, Mukherjea J. did not dissent from the decision in the case of Sasi Kanta Acharjee V/s. Jalil Baksh but held that that decision could be justified on. The second of the two reasons given by the Judges who gave the decision. There is therefore no authority of this Court for the view that the case in Sasi Kanta Acharjee V/s. Jalil Baksh was wrongly decided. I am therefore bound by that decision and I must hold that the Court of appeal below was, competent to entertain the appeal and to pass the order which it did pass.

(3.) It has next been contended that inasmuch as the application to the learned Munsif was not an application Under Section 144 there is no period of limitation prescribed by law which is applicable in the present case. My attention was drawn to the language used by their Lordships of the Judicial Committee in Jai Berham V/s. Kedar Nath 9 A.I.R. 1922 P.C. 269 in which they cited with approval the dictum of Lord Cairns in Rodger V/s. Comptoird Escompte Paris (1871) L.R. 3 P.C. 465 at p. 475 and pointed out that it was one of the first and highest duties of all Courts to take care that the act. Of the Court does no injury to any of the suitors. It was argued from this that independently of any application being made by the parties, the Court had jurisdiction to grant the restitution prayed for in this case and could do so without considering any questions of limitation. I have no doubt whatever that the Court has power Under Section 151, Civil P.C. to grant the relief which the present appellant sought in the Court of first instance, but I am unable to accept the view that the Court could grant relief without any application being made. From the Court records the Court would not be in a position to determine that any relief was necessary and, in my opinion, it was necessary for a person who desired relief to make an application to the Court in order to obtain relief. Such being the case, an application must necessarily be filed and in the present case an application was in fact filed. Once it is conceded that an application is necessary the period of limitation for making that application is clearly the period of limitation provided by Art. 181, Limitation Act. Art. 181 is the residuary Art. for applications and provides a three years period of limitation starting from the time when the right to apply accrues. I am satisfied therefore that the learned Judge in the Court below was right in holding that there was a period of limitation applicable to the present case and that the period of limitation was that provided in Article 181. It has been argued on behalf of the appellant that even if the three years limitation provided in Art. 181 does apply then limitation should start to run either from the date on which the appeal from the order setting aside the sale was dismissed or from the date on which the appellant actually recovered possession of the property which had been sold. The date on which the sale was set aside was 27-3-1939. The date on which the application for restitution was filed was 20-7-1942. Therefore, if the Period of limitation begins to run from the date on which the sale was set aside, the application was barred by limitation. An appeal against the order setting aside the sale was dismissed on 4-9-1939. If limitation begins to run from the date of the appellate order the application for restitution was within time. I am further informed that 4he appellant actually recovered possession of the property sold, in the mon September, 1939 and if so and if limitation commences to run from the date of recovery of possession then the application was within time. In support of the view that the period of limitation does not run from the date on which the sale was set aside reliance was placed on the case in Permeshar Singh V/s. Sitladin Dube . This was a decision of the Full Bench of the Allahabad High Court. The learned Judges were divided as to the date on which limitation in the case of an application Under Section 144 would begin to run but they all agreed that where the decree of the first Court was set aside in appeal and that a second appeal was preferred against the appellate judgment limitation would not begin to run from the date of the first appellate judgment. Sulaiman C.J. was of opinion that limitation would begin to run from the date of the second appellate judgment. The other two learned Judges were of opinion that limitation would begin to run, in so far as restitution on account of mesne profits was concerned, from the time of the recovery of possession of the land. This decision, however, is contrary to all Calcutta decisions on the subject. The matter was considered by a Special Bench of this Court in Hari Mohan V/s. Parmeshwar Shau 15 A.I.R. 1328 Cal. 646. In that case it was held that limitation in the case of an application Under Section 144, Civil P.C. commences to run from the date on which the decree was set aside in the first apellate Court. That case has been followed in two other Calcutta cases namely Sarajbhushan Ghose v. Debendra Nath and Bhabaranjan Das V/s. Nibaran Ch. Gupta . These Calcutta rulings are binding upon me and I am constrained to hold that limitation in a case like the present commences to run from the date on which the sale was set aside and that therefore the application filed by the present appellant in the Court of the Munsif was barred by limitation. In this view of the matter, the decision of the learned Subordinate Judge in the Court below was correct and this appeal must be dismissed with costs the hearing fee is assessed at one gold mohur.