Mohd. Samshuddin Khan vs Sultan Ali Khan

Srinivasachari, J.—The only question that arises in this case is as to whether Article 181, Limitation Act would apply and if so what is the date on which the right to apply accrued to the party. A decree was obtained by a mortgagee with possession against the mortgagor. The Defendant appealed and the appeal was allowed and the case remanded to the trial Court for further enquiry.

On 30th Isfandar 1354F, the trial Court dismissed the suit whereupon the Plaintiff appealed to the first appellate Court which confirmed the judgment of the trial Court; on second appeal to the High Court that judgment was upheld. An application for restitution of the property was filed by the Defendant on 5th Mehr 1357F, which was dismissed for default on account of the absence of the Applicant.

A second application was filed on 9th Azur 1358F and a third on 3rd March 1951. It was contended that the application filed on 5th Mehr 1357F was barred because the trial Court had dismissed the suit on 30th Isfandar, 1354F and therefore, computing the period of limitation from 30th Isfandar 1354F the application should have been filed on 30th Isfandar 1357F. The first Court held that the application was within time while the lower appellate Court has come to the conclusion that the application is barred by limitation. Hence this appeal.

There can be no doubt that the Article of the Limitation Act which would apply to an application u/s 144, CPC would be Article 181, the residuary Article. Under the aforesaid article the terminus a quo would be the date on which the right to apply accrued. The question, therefore, is when did the right to apply accrue in this case.

It is argued by the learned advocate for the Appellant that the final judgment of the High Court was only in 1355F and that, therefore, until the High Court finally gave its judgment no question of limitation could be said to have arisen. On the other hand it is argued by the other side, that immediately the appellate Court remanded the ease to the trial Court the right to apply accrued to the party.

In so far as this question is concerned there is conflict of opinion in the different High Courts in India. The Madras, Bombay, Patna, Nagpur, Oudh High Courts are of the opinion that they would be treated as execution applications and Article 182, Limitation Act would apply; if Article 182 applied then the date of the appellate Court decree will be the starting point of limitation, that is to say, the date of the decree or the order of the appellate Court, while the view taken by the Calcutta High Court is to the contrary.

SO far as this High Court is concerned, there are two judgments, one a Full Bench judgment of five Judges reported in 15 Deccan LR 203 (A) and Anr. reported in 21 Deccan LR 407 (B). In so far as the Full Bench judgment is concerned, what has been decided in that case is that a fresh right to apply would accrue on the happening of any subsequent event. The reasoning of the learned Judges there is that if a party waits till the final adjudication of the matter then because of the fresh facts and events he gets a fresh right to apply.

More or less the Judges were of the opinion that it is open to the party to wait till the final determination of the question and then apply, for, they say that if the final order goes against him there would be no occasion for applying for restitution. This observation occurs at page 207 of the report. So far as the decision in 21 Deccan LR 467 (B) is concerned there is no discussion about the difference of opinion in the different High Courts and that decision is not of much importance to us.

With regard to the views held by the Madras, and Bombay High Courts, their view is based upon this principle that Section 144, CPC is to enable the successful party in the appellate Court to be placed in status quo ante and they hold that restitution is only by way of execution. Originally this was the view taken by the Madras High Court in the case reported in-''Somasundaram Pillai v. Chokkalinga Pillai'' AIR 1917 Mad 183 (C) and followed in 1940 more as a matter of stave devises that in the Presidency of Madras an application for restitution is always treated as an execution application.

In the Bombay High Court also an application for restitution was always treated as an execution application. The reason for the rule according to the Bombay High Court was that under the second clause of Section 144, CPC as this relief could be had only by an application and not by a separate suit it must be treated as an execution application. Vide in this connection- Kurgodigauda Lingangauda Vs. Ningangauda Ningangauda, .

The same was the view taken by the Bombay High Court in subsequent cases viz. Trimbak Gangadhar Gokhale Vs. Ramchandra Trimbak Kirtane, and ''Ganpat Gatlu v. Navnitlal'' AIR 1940 Bona 30 (F). One other matter has also to be taken into consideration and this aspect of the case was also before the Judges of the Bombay High Court when they held that an application for restitution should be treated as an execution application. Where a case is remanded the matter becomes sub judice.

Where, therefore, it becomes sub judice it is not necessary that the Petitioner should apply immediately the order of remand is passed. The same view has been taken by the Nagpur High Court in Somba v. Parashram AIR 1923 Nag 101(1)(G). Vide also AIR 1931 51 (Oudh) . The Calcutta and Lahore High Courts have taken a contrary view.

For the reason that the matter becomes sub judice where an order of remand is made and for the further reason that it cannot be said that the party should take steps immediately an order of remand is made when the matter is still under consideration by other Courts my view is that the right to apply would accrue only after the date of the final adjudication by the appellate Court.

In my opinion the view taken by the High Courts that the terminus a quo under Article 181 for an application for restitution is when there has been a pronouncement of the final Court of appeal would be the correct view. This view receives support iron what was said by the Privy Council in the case of AIR 1932 165 (Privy Council) wherein Sir Dinshaw Mullah, delivering the judgment of, the Board observed:

It is at least an intelligible rule that so long as there is any question sub judice between any oft the parties, those affected shall not be compelled to pursue the so often thorny path of execution which if the final result is against them may lead to no ad-vantage.

Therefore, I am of the opinion that the lower Court was wrong in holding that the application was bar-red by limitation. This appeal is, therefore, allowed and the order of the lower Court set aside. The Appellant will be entitled to his costs throughout.