SHAMUJ ALL Vs. KAMALARMA BIBI

JUDGEMENT

(1.) This appeal by special leave call in question a judgment and order of the High Court Divison dated July 24, 1979 in S.M.A. No. 45 of 1970 reversing the judgment and order of the Subordinate Judge who on setting aside the judgment and order of the Trial Court held that an application for restitution under section 144 of the Civil Procedure Code is governed by Article 181 of Schedule 1 of the Limitation Act, 1908 and not by Article 182 of the laid Act. The High Court Division further held that even if Art. 181 applies to an application for restitutions the three years period of limitation provided thereunder will begin from the date of the final decree in second appeal and not from the date of the decree of the first appellate Court reversing that of the court of the first instance. In other words, ''the right to apply" for restitution as referred to in Art. 181 accrues on "the date of the final decree of the appellate court."

(2.) Facts of the case are rather simple. The respondent-plaintiffs filed Title Suit No. 68 of 1956 against the appellant-defendant for declaration of title and recovery of possession of the suit land. The suit was decreed by the Munsif on 29th May, 1957 and the plaintiffs by putting the decree into execution got delivery of possession of the land on 26th August, 1957. But the defendants filed an appeal against the decree which was allowed and the decree was set aside by the Subordinate Judge, by an order dated 26th June, 1958. The plaintiffs preferred a second appeal being S. A. No. 142 of 1959, in the High Court Division which was dismissed on 26th May, 1965. Thereafter, the defendant filed an application on 29th May, 1967 for restitution under section 144 of the Civil Procedure Code. The application was resisted by the plaintiffs contending that it was barred by limitation under section 181 of the Limitation Act as it was filed beyond the period of three years as prescribed in that Article. This contention was rejected by the learned Munsif who held that an application for restitution is in fact an application for execution of a decree and as such it is governed by Act. 182 of the Limitation Act which provides that for an application for execution of a decree the period of limitation of three yean begins, "where there has been an appeal, from the date of the final decree". On that principle the application for restitution was found to have been filed within the period of limitation. The learned Subordinate Judge, however, took the view that the application for restitution is not an application in execution but it is an Independent application for which no specific provision having been made elsewhere in the Limitation Act or in the Civil Procedure Code will be governed by the residuary provision of Art. 181 and that the three years period of limitation under this Article begins from the date of the decree of the first appellate court reverting the original decree and that on that date the tight to apply accrue. In this case the decree of re venal by the first appellate court having been made to June 26, 1958 the suit was not filed within three years from that date and as much the suit was barred by limitation.

(3.) The question involved in the appeal is a question which ha been agitated for about a century in the superior Courts of the Subcontinent and conflicting opinions have been expressed as to the nature of an application for restitution of a property in pursuance of an adverse appellate decree. For proper appreciation of this question relevant provisions of Law are quoted below: