Krishnamachari vs Chengalaraya Naidu

Abdur Rahman, J.—The main question raised by the appellant in this appeal is whether an application for restitution made on 13th

November 1925, in consequence of an order passed on appeal on 9th 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 13th November 1925. A preliminary decree for sale instead of redemption of a usufructuary

mortgage was passed by a mistake on 8th November 1922 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 11th October 1923, but defendant 5 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. Defendant 5 preferred an appeal against this order in which he was successful and the order of the executing Court was

reversed on 9th July 1924. In the meantime costs which had been awarded to the plaintiff had been recovered by him from defendant 5 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 22nd January 1925. This was appealed against but it was confirmed by the Appellate Court. The plaintiff then applied on 11th 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 defendant

5 from realizing the costs paid by him, from the plaintiff (C.M.. 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 13th 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 18th 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 8th March 1926, and the interim stay was confirmed by another order on the same date. Defendant 5 made

an application for revision against the order granting the plaintiff leave to amend but this was dismissed by the High Court on 28th April 1931.

Before this revision was decided, defendant 5 had filed another petition for restitution and had attached the application dated 13th November

1925, along with this application. This was again returned to him for compliance with certain requirements and was not re-presented. On 28th

April 1934, a fresh petition for restitution was filed by defendant 5 and I have to decide first whether this is within time.

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 Article 182, Limitation Act: see

Somasundaram v. Chokklinga Pillai AIR 1917 Mad. 185. The same view has prevailed in Rangoon and Patna. Muthukaruppan Chettiar v.

annamalai A.I.R.(1933) Rang. 180 and Nanhu Prasad Singh Vs. Nandan Missir and Others, . It is true that the word ''appeal'' occurring in Article

182, Limitation Act, has been held to include revisions, AIR 1932 165 (Privy Council) 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 inexecutable 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.

The question then is, if the applications made by the defendant-appellant in 1925 or 1928 are of any help to him. The application made in 1928

could not be of much use as the present application was made six years later. Moreover, in view of the fact that it was returned for complying with

certain requirements and was not re-presented within a reasonable time even if none was fixed by the Court, it can''t be held to be of any avail to

the appellant now.

This brings me to the main question whether the application of 13th November 1925,should still be deemed to be pending as no final orders

required by Article 182(5), Limitation Act, were passed on that application. This would depend on the effect of the order passed by the Court

returning the application to the defendant-appellant in consequence of the interim stay being then in force. This was clearly a wrong order and it is

therefore contended that the application should still be deemed to be undisposed of and thus held to be pending. The learned Counsel for the

appellant has relied on a number of cases which lay down that in order to entitle a petitioner to treat an application as in continuation or one for

revival of a previous application it should be found that the order dismissing the first application was wrong or that the first application was not

properly disposed of: see Pattannayya v. Pattayya AIR 1926 Mad. 453, Appavoo Nainar v. Lakshmana Reddi AIR 1933 Mad. 745, Ayisa

Umma v. P.K. Abdulla AIR 1924 Mad. 178, Kristo Kamini Debi Vs. Girish Chandra Mondal and Others, and Kristo Kamini Debi Vs. Girish

Chandra Mondal and Others, . The principle on which these cases were decided is beyond controversy; but they have been attempted to be

distinguished by the learned Counsel for the respondent on the ground that the orders passed on the applications were not only illegal but the

applications were physically in Court. He contends that when the applications had been returned to the appellant either improperly in 1925 or

when the application returned for compliance with certain requirements in 1928 was not re-presented by him within a reasonable time it must be

considered to be non est in the eye of the law and cannot be taken advantage of by the appellant after the lapse of about nine years. The

contention is undoubtedly plausible but is there any warrant in law for me to give effect to it when I find that the Court was not justified in returning

the application to appellant on the ground that an interim order for stay had been passed by it two days before? The application should have been

retained in Court and any legal order that the executing Court might have considered to be proper and which it was competent to give should have

been passed thereon. As it is, no final order was passed on this application as required by Article 182(5), Limitation Act. In the absence of any

legal or proper order, I am constrained to come to the conclusion that the application although not physically in Court must be yet treated to be

pending and undisposed of. There is no duty cast on a decree-holder to make an application to revive an execution petition and the application of

1934 must be in the absence of any such duty, taken to be a kind of reminder to the Court to take up his application for execution or restitution

which has not been disposed of and to decide it according to law. I am fortified in this conclusion by a decision given by my learned brother,

Madhavan Nair J., and reported in Kandaswamy Goundar Vs. Chinnammal and Others, .

In the end it has been contended on behalf of the respondent that even if the application for restitution made in 1925 is considered to be pending

up till now, the appellant should, nonetheless, be held to have been guilty of laches and delay and should therefore be held disentitled to make the

application almost 10 years after the order was passed which entitles him to get restitution. Eeliance has been placed in this connexion on two

cases reported in Tripura Sundraamma v. Abdul Khader AIR (1933) Mad. 418 and Jagadisan Pillai Vs. Narayanan Chettiar and Others, It is

hardly necessary for me to examine these cases in any detail as I find that this question was not being considered in either of them. The

observations in the first case were made in summing up the effect of a decision by their Lordships of the Privy Council in Kamar-ud-din Ahamad v.

Jawahir Lal. (1905) in which it had been held that the first petition for execution was not finally disposed of and that the subsequent application was

both in substance and in form made with the object of reviving and carrying through a pending execution which was suspended by no act or default

of the decree-holder. The facts in the second case were entirely different. No petition for execution was pending or undisposed of in that case and

it was found that the decree-holder could have applied for execution at any time after March 1924 and the delay from March 1924 to August

1932 was on account of his own negligence or laches and not to any defect in the decree or to any circumstances connected with the decree which

prevented him from putting in an application for execution.

I find, on the other hand, that in the present case, the petition for execution filed by the appellant has not been finally disposed of so far and the

interruption was not occasioned by any default or laches of the appellant. The interim stay was obtained by the respondent and it was in

consequence of this stay that the application for restitution was illegally returned to the appellant. Moreover, the objection as to laches or delay,

based as it is on the equitable doctrine of English Courts cannot be allowed to prevail when the legal rights of a party to a proceeding come up

before the Court for determination. It might have been different if the appellant were asking for an equitable relief. He is asking for a legal relief in

this case and the only question is whether this is barred by the statute of limitation. There is thus no room in such cases for the application of any

equitable defence such as suggested by the learned Counsel for the respondent.

In the circumstances the application made by the appellant in 1925 must be held not to have been disposed of and the application made in 1934

may be regarded either in the nature of a reminder or as one for continuance thereof. The result is that this appeal must be accepted and the case

sent back to the executing Court for disposal of the application made by the appellant in 1925. In the peculiar circumstances of the case, however

I shall leave the parties to bear their own costs throughout.