Loke Nath Singh and Others vs Mahabir Singh and Others

Agarwala, J.—The plaintiffs who are the appellants instituted six suits for recovery of possession and mesne profits against a number of persons. The suits were tried together and decreed in 1915, a lump sum for mesne profits being afforded jointly against all the defendants. On appeal to the High Court by the defendants it was ordered that the liability of the defendants for mesne profits should be separately ascertained. This was finally effected on 23rd December 1926. Prior to this however the decree-holders had realized the entire mesne profits from some only of the judgment-debtors, this resulting in mesne profits being realized from each of such judgment debtors in excess of the amount for which he was subsequently found to be liable. Consequently these judgment-debtors applied for restitution by an application dated 5th February 1927.

In this application the judgment-debtors asked for restoration of the whole amount that had been realized from them by the decree-holders. On 31st March 1928, an order for restitution was passed directing that the sum realized from each of the judgment-debtors, less the amount due from him in respect of the plaintiffs'' decretal dues and interest should be restored. An appeal by the plaintiffs against this order was dismissed by the District Judge on 20th December 1928. The amount to be restored to each judgment-debtor was finally ascertained on 18th March 1929. On 14th March 1932, the judgment-debtors presented the present applications for the amounts which they claimed.

The decree-holders pleaded limitation, but this plea was overruled by the first Court following the Full Bench decision in Balmakund Marwari v. Basanta Kumari Dasi 1925 Pat 1, in which it was held that an application for restitution was not an application for execution and was governed by Article 181, Limitation Act.

An appeal to the District Judge Was dismissed. In this second appeal it is pointed out by Mr. Bose, for the appellants, that the decision in Balmakund Marwari v. Basanta Kumari Dasi, 1925 Pat 1 has been overruled by the later Full Bench decision in Bhaunath Singh v. Thakur Kedar Nath Singh, 1934 Pat 246, where it Was held that an application for restitution is an application for execution and is therefore governed by Article 182 and not Article 181, Limitation Act. The case which was eventually decided by the Full Bench in Balmakund Marwari v. Basanta Kumari Dasi, 1925 Pat 1, first came before a Division Bench consisting of Dawson Miller, C.J. and Jwala Prasad, J., and is reported in Basanta Kumari Dasi v. Balmakund Marwari 1928 Pat 371. The Division Bench held that an application for restitution is an application for execution to which Article 182 applies.

The case was remanded on a question of fact to the Court of appeal below. After remand the case came up on appeal before Mullick and Bucknill, JJ., who referred to the Full Bench the question whether an application for exercise of the power of restitution conferred either by Sub-section 144 or Section 151 C.P.C., is governed by Article 181, or Article 182 Limitation Act, and, if neither of these articles is applicable, whether there was any other article applicable. On that reference the Full Bench held that Article 182 and not Article 181 applied, Ross, J., dissenting from the view taken by Das and Kulwant Sahay, JJ. So far as this Court is concerned the question is now settled that an application for restitution is an application in execution governed by Article 182, and the question that arises now is: what is it that has to be executed on an application for restitution?

That question appears to be answered by Dawson Miller, C.J., at p. 283 (of 2 Pat), from which it appears that what is to be executed is the decree of the. Court which, by reversing or varying a decree under appeal, entitles a party to be restored to the position which he occupied prior to the decree reversed or varied. In the present case therefore the order of 23rd December 1926, which finally ascertained the amount of mesne profits payable by each of the judgment-debtors is the date from which limitation must be taken to run. Application for restitution was made within 12 months of the date, namely on 5th February 1927, and was therefore within time.

That application has so far not been dismissed or otherwise disposed of and is therefore still pending. For these reasons it appears to me that the application is within time and that execution must now proceed. These appeals are therefore dismissed with costs.

Saunders, J.

I agree.