MOKSHAGUNDAM NAGABHUSHANAYYA Vs. PASAM KOTAYYA

JUDGEMENT

(1.) This appeal raises an interesting question of law. We consider that the correct opinion was expressed in the judgment under appeal.

(2.) The plaintiff and defendants 1 to 5 were the owners of a parcel of agricultural land measuring 2.30 acres. In 1939 there were proceedings under Section 145 of the Code of Criminal Procedure. As the result of the inquiry the Magistrate held that the sixth defendant was in possession and passed an order under subsection (6) of the section. The order, which is dated the 16 January, 1939, was passed against defendants 1 to 5 alone. The plaintiff was not a party to the proceedings under Section 145. Defendants 1 to 5 filed an application in this Court, asking for revision of the Magistrate's order. This application was rejected in limine by an order dated the 15 August, 1939. The suit out of which the appeal arises was filed on the 26 May, 1942. The plaintiff asked that possession be given to him and to his co-owners. Art. 47 of the Limitation Act provides that a suit of this nature shall be brought within three years of the date of the final order in the case. It can only be brought by a person bound by the order. The plaintiff was not bound by the order and he had the right to sue without regard to Art. 47; but if the final order within the meaning of the Art. is that passed by the Magistrate on the 16 January, 1939, the suit was out of time so far as defendants 1 to 5 were concerned. On the other hand, if limitation runs from the date of the dismissal of the application for revision, the whole suit was in time. The District Munsiff held that so far as defendants i to 5 were concerned the suit was out of time and therefore merely gave a decree to the plaintiff for his share of the property. The decree passed by the District Munsiff was confirmed by the Subordinate Judge and by Happell, J., on second appeal. The present appeal is by defendants 1 to 5 from the judgment of the learned Judge.

(3.) The District Munsiff and Happell, J., relied on the following observations of Sadasiva Aiyar, J., sitting with Napier, J., in Venugopala Mudali V/s. Venkatasubbiah Chetty (1915) I.L.R. 39 Mad. 1196: I need not say that where the order on a review petition as distinguished from an appeal petition merely refuses to interfere with the judgment or order sought to be reviewed or where an appeal is not entertained at all, though filed, the original decree or order is and continues to be the subsisting and final decree or order. In this respect an order rejecting a review petition stands on a different footing from a decision passed on appeal confirming the lower Court's judgment and dismissing the appeal. If the decision on review or revision does interfere with the original decision, the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal. It will in that case become the starting point for limitation. It is true that these observations were in the nature of obiter dicta; but for reasons which we shall presently state, we agree with them.