BHABARANJAN DAS DEWRI Vs. NIBARAN CHANDRA GUPTA

JUDGEMENT

(1.) The appellant appeals from the decision of the Additional District Judge, Fourth Court, Bakerganj, dated 23 April 1938, whereby the learned Judge reversed the order of the Munsif whereby the respondent was ordered to pay a sum of Rs. 80 to the appellant under Section 144, Civil P.C. The facts are these : In 1928 an ex parte decree of ejectment was obtained by the decree-holder respondent against the appellant in respect of his homestead. The homestead was sold to satisfy the cost of that decree and the appellant took proceedings to set aside the sale. In the course of those proceedings on 13 June 1931 the appellant deposited the sum of Rs. 80 with the Court for payment to the auction-purchaser of the homestead, in accordance with the provisions of Order 21, Rule 89, Civil P.C. On 28th February 1933, in a suit by the appellant the decree of ejectment was set aside on the ground of fraud. On 29 March 1933, there was an appeal against the decree of setting aside the ejectment decree which was dismissed. There was a subsequent appeal in the same matter to this Court which was heard and dismissed on 18 February 1936. On 11 June 1937, the appellant applied to the Court for restitution in respect of the deposit and his application was granted by the learned Munsif but as stated above reversed on appeal by the Additional District Judge. The Additional District Judge held that the application for restitution was time- barred as being more than three years after 28 February 1933. Now the application for restitution was made under Section 144, Civil P.C., which provides thus: Where and in so far as a decree is varied or reserved the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed....

(2.) The order for restitution in this case is one for payment of Rs. 80 to compensate the appellant for the Rs. 80 he paid to the auction-purchaser when his homestead was sold. The appellant was entitled to apply under Section 144, Civil P.C., for that compensation when the decree under which those proceedings had arisen was varied or reversed. That date was 28th February 1933. That was the proper date for him to apply. Art. 181, Limitation Act, is applicable in a case of this kind and that provides that the period of limitation is three years from the time when the right to apply accrues. Here the right to apply accrued on 28th February 1933. Consequently, the applicant's application was time barred on 11 June 1937. In coming to that conclusion I am giving effect to the principles laid down by this Court in Hari Mohan Dalal V/s. Parmeswar Shahu (1928) 15 A.I.R. Cal. 646 and in Saraj Bhusan V/s. Debendra Nath with which judgments I respectfully agree. It has been suggested that we should use our powers under Section 151, Civil P.C., in favour of the appellant. I do not agree. It appears to me that the appellant either forgot about this Rs. 80 or slept on his rights with regard to it. That is not such conduct as would induce this Court to invoke the special powers under Section 151, Civil P.C. In my opinion this appeal must be dismissed with costs, hearing fee being assessed at two gold mohurs. B.K. Mukherjea, J.

(3.) I agree with my Lord, the Chief Justice, in holding that this appeal should be dismissed. There is no dispute about the facts of the case which lie within a short compass. The respondent Nibaran Chandra Gupta obtained an ex parte decree in an ejectment suit sometime in the year 1928. In execution of the decree for costs passed in that suit the homestead of the appellant was sold and he had to deposit a sum of Rs. 80 in that Court to set aside the sale. He instituted a suit in the Court of the First Munsif at Perojpur to set aside the ex parte decree on the ground of fraud. That suit succeeded and the ex parte decree was set aside by the Munsif by his judgment dated 28 February 1933. Against this decision there was an appeal taken by Nibaran which was dismissed by the First Appellate Court on 29th March 1934. Thereupon a second appeal was taken to this Court and this appeal was eventually dismissed on 18 February 1936. On 11 June 1937 the appellant started a proceeding for restitution under Section 144, Civil P.C., and he wanted to recover the sum of Rs. 80 as compensation for the loss of his deposit. This application was resisted principally on the ground that it was barred by limitation. The trial Court negatived this plea. On appeal the judgment of the trial Court was set aside and the Additional District Judge of Bakerganj rejected this application for restitution on the ground that it was time-barred.