RAMA KANT MALAVIYA Vs. SATYA NARAIN MALAVIYA

JUDGEMENT

(1.) This is a second appeal brought by two persons, Pt. Rama Kant Malaviya, Advocate, and Pt. Krishna Deo Chaube against a decree of the lower Appellate Court in a proceeding under Section 144, Civil P.C., for restitution. The matter in which this proceeding arose is as follows. The opposite party respondent, Pt. Satya Narain Malaviya, brought a suit for damages for defamation against 12 persons including the two appellants before us and the proceedings which followed were as follows: 7-11-27 - Decree for damages. Rs. 300 for defamation and Rs. 72 costs against twelve persons. 7-12-27 - Ten of these persons including appellants appealed and two persons Mahadeo Vyas and Thakur Prasad did not appeal. 13-1-28 - Application by plaintiff for execution against defendant 2, Brij Mohan Dube; defendants, Pt. Krishna Deo Chaube, appellant; defendant 4, Bechu Ram, and defendant 9 Parsotam Dube. This actual application is not against Pt. Rama Kant. 23-1-28 - An application to the Court for the full decretal amount of Rs. 373-13-3 to be deposited. The application is in the singular but the name written across below the application is "Ramakant waghairah madynunan". At the same time the tender was made by Pt. Krishna Deo Chaube alone. The application asked that pending disposal of appeal the sum should not be paid out. 24-2-28 - RS. 373-13-3 paid out to plaintiff by Court contrary to defendants application. 25-1-29 - Civil Judge dismissed the suit of plaintiff and allowed the appeal of 10 defendants : no order about remaining two defendants. 29-4-29 - First application for restitution under Section 144, Civil P.C., by defendant Pt. Krishna Deo Chaube. On a date not specified the plaintiff appealed to the High Court in second appeal. 21-11-29 - High Court ordered stay of hearing of the application of defendants under Section 144, Civil P.C., pending the disposal of the second appeal. 29-11-29 - The trial Court filed the application under Section 144 for the present. 2-4-30 - The High Court discharged the stay older. 27-7-31 - The High Court dismissed the second appeal of plaintiff. 17-3-32 - Second application Under Section 144 of Pt. Rama Kant and Pt. Krishna Deo for refund of Rs. 373-13-3. 9-5-32 - Second application dismissed for default. 4-1-33 - Third application for refund under Section 144, Civil P.C., by Pt. Rama Kant and Pt. Krishna Deo. 16-3-33 - Fourth application by Pt. Rama Kant through Mr. Gauri Shankar asking that the third application should be treated as a continuation of the first.

(2.) Now three questions have arisen in this appeal : one is a question which was the subject of a Full Bench ruling of this Court in Parmeshar Singh V/s. Sitldin Dube . In that Full Bench ruling there was a decision that an application under Section 144, Civil P.C., was not a proceeding in execution and Art. 182 did not apply to it but Art. 181, Limitation Act. In the ruling further it was held by two Judges to one that time for making an application under Section 144 begins to run from the date of the lower Appellate Court's decree when the first Court's decree was reversed and the right to apply for restitution first accrued, and the mere fact that the lower Appellate Court's decree was subsequently affirmed on second appeal to the High Court did not give a fresh start of limitation under Art. 181. We have been asked to reconsider this rule laid down by the majority of the Full Bench, but we do not consider that it is necessary to go into the merits or demerits of such a point in the present case as we are satisfied that the present case is governed by another consideration which we shall now mention.

(3.) The third matter which arises in the present case is the point that the claim is made for appellants that the lower Appellate Court erred in holding that the present application for restitution cannot be a revival of the application filed in 1929. Now the trial Court held that the present application was really an application for revival of the old application and was well within time. The view of the learned Munsif was that the application of 16 March 1933 was one which would fall under Art. 181, Limitation Act, and as it was made within three years from 2 April, 1930, the date of the discharge of the stay order by the High Court, therefore it was within the period of three years limitation. The view of the Civil Judge was to the contrary that the fourth application could not be treated as the revival of the first because it was a different application. This view has also been supported by Dr. Asthana by pointing out that the fourth application was by Pt. Rama Kant and the first application was by Pt. Krishna Deo Chaube. We do not think there is much merit in these contentions about the difference between these two applications. It appears to us that the first application by Pt. K.D. Chaube was on behalf of the defendants who had made the deposit and the deposit, as we have indicated, was made on behalf of both the appellants, and in any case the question of the distribution of the deposit would be one for the defendants inter se. The plaintiff who is bound to make a payment has no right to withhold payment for a question of that nature. But we consider that the matter should be regarded from a different angle of vision. In our view there was the first application of 29 April 1929 made for restitution under Section 144, Civil P.C., and there is no doubt that that; application was made within time as the decree of the Civil Judge varying the decree of the trial Court was made some three months previous to that application on 25 January 1929. Now in our view the first application is still pending. No final order has been passed on that application. The trial Court merely directed that the application should be filed for the present in the record room when an order was received from the High Court for staying all proceedings in that application. Now the order to send a case to the record room is merely an administrative order and is not a judicial order. It is in no sense a final disposal of the case. The case therefore has remained pending and no judicial order has been passed on it to terminate it.