KRISHNAMACHARI Vs. CHENGALRAYA NAIDU

JUDGEMENT

(1.) The main question raised by the appellant in this appeal is whether an application for restitution made on the 13 November, 1925, in consequence of an order passed on appeal on the 9 July, 1924, and returned by the Court on the ground that an order of an interim injunction restraining the applicant from recovering the amount deposited by him for costs was still in force is still undecided and should therefore be ordered to be proceeded with. Two more applications for restitution were presented by the appellant in 1928 and in 1934. They will have to be incidentally considered but as the facts which are going to be stated will show, the decision of this appeal solely depends on the effect of the order passed on the application presented on the 13 November, 1925.

(2.) A preliminary decree for sale instead of redemption of a usufructuary mortgage was passed by a mistake on the 8 November, 192? and costs were ordered to be paid by all the defendants, who were five in number, to the plaintiff. The plaintiff (decree-holder) applied for the recovery of costs on the 11 October, 1923, but the fifth defendant who is the appellant in the present appeal objected on the ground that the decree was preliminary in character and was therefore inexecutable. This objection was overruled by the execution Court. The fifth defendant preferred an appeal against this order in which he was successful and the order of the executing Court was reversed on the 9 July, 1924. In the meantime costs which had been awarded to the plaintiff had been recovered by him from the fifth defendant who applied for restitution after his appeal had been accepted (C.M.P. No. 1257 of 1924). An order for restitution was passed by the executing Court on the 22nd January, 1925. This was appealed against but it was confirmed by the appellate Court. The plaintiff then applied on the 11 November, 1925, for an amendment of the preliminary decree and prayed that the decree for sale, which had been erroneously passed by the Court, be converted into a decree for redemption (C.M.P. No. 357 of 1925). On the same date he applied for a temporary injunction restraining the fifth defendant from realising the costs paid by him, from the plaintiff (C.M.P. No. 390 of 1925). An ex parte order was passed by the execution Court and an interim stay was ordered. The fifth defendant, apparently without any knowledge of this order, presented another application on the 13 November, 1925, asking for restitution but instead of keeping it on the file or adjourning it to a future date, a curious procedure was observed by the executing Court. The petition for restitution was returned on the 18 November, 1925, to the fifth defendant on the ground that the order granting interim stay had been passed and was in force. It is on the effect of this order that the decision of this appeal depends. The application for amendment made by the plaintiff was eventually allowed on the 8 March, 1926, and the interim stay was confirmed by another order on the same date. The firth defendant made an application for revision against the order granting the plaintiff leave to amend but this was dismissed by the High Court on the 28 April, 1931. Before this revision was decided, the fifth defendant had filed another petition for restitution and had attached the application dated the 13 November, 1925, along with this application. This was again returned to him for compliance with certain requirements and was not re-presented. On the 28 April, 1934, a fresh petition for restitution was filed by the fifth defendant and I have to decide first whether this is within time.

(3.) Having been presented after about six years of the application made in 1928 it is apparently barred, but it has been contended that the limitation for this application started on the date on which the appellant's revision was ordered by the High Court to be dismissed. Applications for restitution have been treated in this Presidency as applications for execution and would therefore be governed by Art. 182 of the Indian Limitation Act. See Somasundaram V/s. Chokkalingam (1916) I.L.R. 40 Mad. 780. The same view has prevailed in Rangoon and Patna.Muthukaruppan Chettiar V/s. Annamalai (1933) I.L.R. 1 Rang. 275 and Pathak Bhaunath Singh V/s. Thakur Kedar Nath Singh (1934) I.L.R. 13 Pat. 411 (F.B.). It is true that the word appeal occurring in Art. 182 of the Limitation Act has been held to include revisions, Nagendra Nath Dey V/s. Suresh Chandra Dey (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 (P.C.) and if the order, in pursuance of which the application for restitution was made had been the subject of a revision in the High Court, limitation would have started from the date on which the final order was passed by this Court. This is however not the case. The first decree was held to be in-executable by the appellate Court in July, 1924. This order was not appealed against and became final. The cause of action for making an application for refund thus accrued to the appellant on the date when the appeal was accepted in 1924. This was independent of the application made or order passed by the Court for amendment of the decree. If the order passed on appeal in July, 1924, were final and could not be affected by the subsequent amendment, the pendency of a revision petition by the plaintiff against the order allowing the decree to be amended could not possibly help him. The revision was in respect of a collateral matter with which we are not at present concerned. The contention that the starting point of the period of limitation should be the date of the order passed by this Court in 1931 on revision has therefore no force.