Vasudevan vs Choyikutty

Madhavan Nair J

This second appeal has been referred by Raghavan J. to a Bench on account of the conflict of judicial opinion on the vexed question it raises, namely, whether an application for restitution u/s 144, C.P.C., is an application for execution of a decree within the purview of Article 182 of the Indian Limitation Act, 1908. Even under the present Limitation Act, XXXVI of 1963, it remains a question of some difficulty. The facts are thus: The respondent-plaintiff, having obtained an assignment of the landlord''s rights, instituted this suit in 1944 for recovery of the property with arrears of rent. The 3rd defendant was an under-tenant of the property, who himself has sub-let it to the 4th defendant. The Munsif, Kozhikode-II, decreed the suit on February 28, 1945, and in execution thereof the respondent obtained possession of the property on January 12, 1946. The 3rd defendant appealed against the decree in so far as it concerned arrears of rent. It was allowed by the Subordinate Judge. The plaintiff took the matter in second appeal before the Madras High Court, when the entire decree was set aside, and the suit was remitted to the Munsif. That was on April 23, 1952. Though thereafter the Munsif decreed the suit again on October 28, 1952, it was reversed by the Subordinate Judge, on appeal by the 3rd defendant, and the suit remanded again to the Munsif on November 30, 1953. Then the Malabar Tenancy Act came to be amended by Act VII of 1954 interdicting suits for eviction of tenants by assignees (inter vivos) of landlords within two years of the assignment. Though the rule was not retrospective (Vide: Neelakandhayya Pillai v Sankaran-1961 KLT 755) and more than 10 years had elapsed after the assignment in favour of the plaintiff, the Munsif dismissed the suit on December 23, 1955, as barred by that rule; and it is become final now. On April 7, 1956, the 4th defendant applied for redelivery of the properties to him with mesne profits, u/s 144, C.P.C., and the respondent-plaintiff contented it to be barred by limitation. The Munsif held that ''an application for restitution u/s 144 is one of execution of decree of the appellate court and is governed by Art. 182'' of the Limitation Act''; that ''the starting point for purpose of limitation is the date (of decision) of the second appeal, viz., 23-4-1952''; and that ''the present petition (is) barred'' by time. On appeal, the Subordinate Judge held that ''if the appellant had a cause of action for restitution as on the date of the aforesaid judgment he had yet another by reason of the final dismissal of the suit'', and that therefore the petition is within time. The plaintiff has come up in second appeal.

The learned Advocate-General appearing for the appellant contends that an application for restitution is not an application in execution of any decree, and is governed by Art. 181 of the Limitation Act and that the present application filed beyond three years of the accrual of the right to restitution on cancellation of the original decree by the High Court is barred by limitation.

The questions raised here, have been the subject of discussion in most of the High Courts in India from early days, though unfortunately they held diverse views. However, all possible aspects have been discussed by this time so that our job here is only to summarise the reasons for either view and to express our preference of one over the other.

Before doing that, we will just trace the history of devolopment of the rule of restitution; for, a knowledge of the past may help the correct understanding of the present. In the earliest Indian CPC enacted in 1859 there was no provision for restitution. The question, however, arose in Shama Purshad Roy Chowdory v Hurro Purshad Chowdory (1863-66-10 M.I.A. 203) when the Privy Council observed:

If it (the original decree or judgment) has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and, as their Lordships conceive, is recoverable either by summary process, or by a new suit or action.

In Alexander Rodger v The Comptoir D'' Escompte De Paris (1869-71) L.R. 3 P.C. 465 (a case from Hong Kong), the judicial Committee reported that in such circumstances

...one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors...The perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest during the time that the money has been withheld

and observed in support of that dictum

...the practice of the Courts in India, when there has been a reversal in this country, and when money has been ordered in India to be paid back in consequence of that reversal, is to order the payment of interest.

Again, in Forester v Secretary of State for India (1877) 4 I.A. 137, 146, their Lordships observed:

It is but equitable that the party who has received money under a decision afterwards found to be wrongful should account for that money with interest...although there was no positive direction for a refund in the appellate decree.

It is oberved in certain decisions (See AIR 1944 190 (Lahore); AIR 1947 239 (Nagpur) ) that it was to bring the law in line with the above obervations of the Privy Council that Section 583 was introduced in the Code of Civil Procedure, 1882. That Section was in the following terms:

When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits.

We do not think that this section embodied the equitable principle enunciated by the Privy Council in the aforesaid rulings. By its wording, it concerned only restitution that ''a party was entitled under a decree passed in an appeal'', and desired to enforce by executing the ''decree passed in appeal''. As was the practice in olden times in England, the appelate Court may, in a judgment of reversal, direct that the successful party be restored to all the things that he had lost on enforcement of the reversed judgment. When such a direction is made, or, in other words, a decree to that effect is given by the appellate court, then obviously restitution has to be effected by execution of the appellate decree (See Mela Ram and Others Vs. Dharam Chand Amrit Lal, ). In the words of Rankin C.J.:

In such a case the remedy provided by Section 144 Civil P.C. is not required. All that it is necessary to do is to have execution of the appellate Court''s decree as it stands." ( Hari Mohan Dalal and Another Vs. Parameshwar Shau and Others,

But, cases arise when the appellate court considers only the merits of the decree of the court below and varies or reverses the same without taking notice of the execution proceedings had in the meanwhile. In fact, most decrees passed nowadays in appeal, review or revision are of the latter kind. They contain no mandate or direction to restore any money or property taken in execution of the lower court''s decree. If execution of a decree means the enforcement of the mandate or directions in the decree according to its terms, execution of the appellate or revised decree in Such cases cannot bring about restitution that is not directed therein. To grant restitution in such cases u/s 583 necessarily involved too much stretching and straining of the language thereof. Further, though the section required applications thereunder to be made ''to the Court which passed the decree against which the appeal was preferred'' and directed ''such court'' to execute it, in cases of reversals of original court decrees in second appeals, applications were invariably moved and entertained in the Court of first instance, and not in the court of first appeal-a practice which a Select Committee of the Legislature observed to be not justified by the language of the section. It is not surprising therefore that in re-enacting the CPC in 1908, the Legislature made radical changes in the provision for restitution.

Section 144 of the Code of 1908 reads as follows:

Application for restitution.-(1) Where and in so far as a decree or an order is varied or reversed, 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 order or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mense profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

In this new Section:

(1) all reference to execution that existed in the old Section is omitted, instead, the Court of first instance is directed to "cause restitution to be made" so as to annual the evil consequences of the reversed decree;

(2) the scope is enlarged to cover all cases of variation or reversal of a decree or order, while the old section was confined to reversals of decrees in appeal;

(3) provision is made not only for restitution of what has been taken under the wrong decree, but also for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on the variation or reversal of the original decree or order; and

(4) restitution is made part of the proceedings in the suit itself-just as execution is-and a separate suit for the relief is expressly barred by the section.

The definition of the term ''decree'' in the Code is also amended to cover all orders made u/s 144, much as orders u/s 47 are.

The expression in Section 144 "shall...cause....restitution to be made", in juxtaposition with that in Section 583 "shall proceed to execute", seems significant. The former contemplates ''an executable order'' to be executed in due course; while the latter contemplates only ''execution''. There is an essential difference between an "application for execution of a decree and an application for restitution on the reversal of a decree of the first Court. A decree is supposed to be self-contained and an executing court merely executes the decree and carries out the directions contained in the decree and gives effect to the same. In the case of restitution, there is no decree for the amount claimed by the applicant. An enquiry has to be made by the Court, evidence has to be taken and then an order passed u/s 144 calling upon the opposite party to make restitution and refund amounts or pay cost, interests and mesne profits, etc. Thus the proceeding relating to restitution entails an elaborate inquiry and an investigation into the facts, whereas the mere execution of a decree is more or less a mechanical process." Parmeshar Singh and Others Vs. Sitladin Dube and Another "That order of the Court (for restitution) is by virtue of Section 2 (2), Civil P.C., treated as a decree of the Court and executable as such. An application, therefore to obtain an executable order cannot in my view be called an application for execution in itself. Moreover, it is obvious that merely on the strength of an appellate decree by which the original decree is modified or reversed, an applicant cannot move the Court to issue those processes which are provided for in O. XXI, R. 11(2)(j), Civil P.C. In other words, the applicant can neither ask for the attachment and sale of any property at once nor apply for the arrest and detention in prison of any person, for the appointment of a receiver direct. These modes of executing the decree are open to him only if his application is allowed and an order u/s 144 is made". AIR 1944 190 (Lahore) .

Same is the view expressed by Hidayatullah J., with the concurrence of Padhye J., in AIR 1947 239 (Nagpur) : It is therefore clear that an application u/s 144, is an application to require the Court of first instance to determine the mode and extent of the relief which should be granted to the injured party entitled to restitution. The section empowers the Court to determine all questions necessary for due restitution and pass an order in that respect. The scope of S. 144, Civil P.C., ends when an order, which according to English law would be a writ of restitution, is passed. If the person ordered to make restitution fails to comply with the order, then that order being a decree is executable in the same way as any other decree. The matter of executing the order is however beyond the scope of Section 144 and it would be governed by those provisions of the Civil Procedure Code, which deal with the execution of decrees and orders.

The fact that an application u/s 144 C.P.C. is to be made in ''the Court of first instance'' (See AIR 1944 Lah. 190, 195-F.B.) is also indicative of the application being not an application in execution of any decree.

In AIR 1943 189 (Privy Council) the Privy Council observed:

When a decree is varied or reversed in the circumstances giving rise to a right by way of restitution, the right arises automatically and is claimable u/s 144 of the Code before the trial Court....

But the appellant''s claim is nevertheless one which cannot be made by a suit but can only be made by an application to the trial Court under S. 144 of the Code....

Mention may also be made of certain minor aspects that indicate that an application u/s 144 is not an application in execution of a decree, such as that, if it were otherwise, a separate provision as the present Section 144 would not be necessary apart from Section 47 (A.T.R. 1944 Lah. 190 F.B.; Balmukund Marwari Vs. Basanta Kumari Dasi and Another, ; or that an executing court cannot travel beyond the terms of the decree as is required to be done by Section 144. (See AIR 1947 239 (Nagpur); Mela Ram and Others Vs. Dharam Chand Amrit Lal, .).

In Esthappanose v Madhava Menon (33 Cochin Law Reports 600) it was conceded at the Bar and accepted by the erstwhile Cochin High Court that an application for restitution u/s 144 on variation of a decree was a miscellaneous application governed by Article 162 of the Cochin Limitation Act corresponding to Article 181 of the Indian Limitation Act, 1908.

Counsel for the respondent relied on Somasundaram Pillai v Chokkalingam Pillai (A.I.R. 1917 Mad. 185=40 Mad. 780), Unnamalai Ammal v Mathan (A.I.R. 1917 Mad. 194-2), Chittoori Venkataraju v Chokka Suryanarayana (A.I.R. 1943 Mad. 248=I.L.R. 1943 Mad. 411), Kurgodigauda Lingangauda Vs. Ningangauda Ningangauda, , Hamidalli Kadamalli Vs. Ahmedalli Mhibuballi, , Ganpat Gatlu Vs. Navnitlal Ranchhoddas, and the majority opinion in Nanhu Prasad Singh Vs. Nandan Missir and Others, . Nothing said in those decisions seem to us to counterweigh the aspects noticed above. In the first of the abovesaid decisions the dictum runs thus:

Section 144 of the present Code has been so framed as to enable the successful party in the appellate court to be placed in status QUO ante. The language of Section 583 of the old Code was not wide enough to cover all cases of benefits arising from the reversal of a decree being fully realized by the successful party, Apart from this change, we see no ground for holding that the legislature intended to make any departure in the procedure by which restitution is to be obtained. Under the old Code, restitution was by way of execution: See 31 All. 551 (PC). The same rule applies to similar applications under the new Code. The language of Section 47 of the Code would cover all cases of restitution.

In Hamidalli Kadamalli Vs. Ahmedalli Mhibuballi, the ratio is expressed thus:

...an application for restitution cannot be treated as anything else than an application for execution of the decree of the appellate Court. It is the decree of the appellate Court which entitles the successful appellant to get back something, which he had been deprived of by the decree of the lower Court, under which the then successful party had actually received possession. In order, therefore, to get back what he has lost, the successful appellant must apply for execution of the order which entitles him to get back that possession. Clearly, therefore, article 132 applies to applications u/s 144.

In Ganpat Gatlu Vs. Navnitlal Ranchhoddas, though the learned Judge, relying on 41 Bom. 625 and 45 Bom. 1137, held it to be "clear upon authority that the application for restitution must be regarded as an application in execution", the following observation of his Lordship seems to lend much colour to the contrary view:

I am unable to agree with the reasoning that the rule in S. 144 of the Code enunciates the doctrine of restitution in an unqualified form and contemplates a complete and unqualified restitution with all consequential reliefs. As I have already remarked, the language of the Section makes a distinction in the Court''s powers in placing the parties in the position which they would have occupied but for the decree. The Court has to regard the nature of the claim, the relief granted, the variation introduced in appeal and the manner in which the ultimate decision might affect the rights of the parties to the subject-matter in dispute. These considerations have necessarily to be borne in mind in exercising the discretion vested in the Court determining the claim to ancillary relief by way of refund of cost, payment of interests, damages or compensation and mense profits.

A decision on such an enquiry cannot be execution of the decree in the case.

In Nanhu Prasad Singh Vs. Nandan Missir and Others, Courtney Terrrel C.J., observed:

Section 144 of the new Code, is no more than an amplification of Section 583 of the old Code under which application for restitution was made in execution. The re-arrangement in the new, Code, has in my opinion, not affected the essential nature of the remedy which remains as before a remedy in execution though subject to a special procedure.

and Wort J. followed Somasundaram Pillai v Chokkalingam Pillai (A.I.R. 1917 Mad. 185=40 Mad. 780); Macpherson J. agreed with their Lordships; but Kulwant Sahay J. and Fazl Ali J. differed.

The argument that, unless an application for restitution is treated as an application for execution, Section 6, Limitation Act, would not be of any avail to the minors entitled to restitution, canvassed in Parmeshar Singh and Others Vs. Sitladin Dube and Another is met in AIR 1944 190 (Lahore) thus:

In several other important matters which evidently do not fall under either one heading or the other, minors have no privileges whatever. If, for example, a minor''s legal disability does not confer any special privilege upon him in the matter of setting aside awards or obtaining, a review of judgment by the High Court in the exercise of its original juridication, or setting aside a dismissal for default, or a decree exparte, or asking for leave to appeal as a pauper, why should it be considered exceptionally harsh on a minor if in the matter of seeking a refund, he does not secure the benefit of the extended limitation.

Further, as has been observed by the Supreme Court in Sirajul Haq Khan and Others Vs. The Sunni Central Board of Waqf, U.P. and Others, "rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant."

In Mathan Chacko v Uzhathiraru (30 T.L.J. 306 F.B.) the erstwhile Travancore" High Court accepted the view "that an application for restitution is substantially an application for execution saying: "There is no reason why this Court should not accept the reasoning which has found favour with the majority of the British Indian High Courts." The same was done in Kochu Vareed v Mariyam (A.I.R. 1952 T.C. 40) and Karthiayani v Sreedhararu (A.I.R. 1952 T.C. 406) by the erstwhile Trayancore-Cochin High Court as well.

In Varkey v Ely & Others (1962 K.L.J. 237) Velu Pillai J. treated an application for recovery of mesne profits u/s 144. C.P.C. as an execution petition, following "the majority of the High Courts in India including the Madras and Travancore Cochin High Courts.

We do not feel persuaded by the reasonings in the abovesaid decisions for the view that an application for restitution u/s 144, C.P.C. is an application for execution of the appellate decree. We would agree with Lal Gopal Mukerji J. in the observation in Parmeshar Singh and Others Vs. Sitladin Dube and Another ".............execution is execution and restitution is restitution; execution is not restitution and restitution is not execution", and hold that an application u/s 144, C.P.C. is an application to secure an order for restitution, which order would be executable as a decree; and that it is not an application for execution of any decree. It must then be governed, not by Article 182, Limitation Act, 1908, corresponding to Article 136 of the Limitation Act, 1963, but by the residuary Article 181, Limitation Act, 1908, corresponding to Article 137 of the Limitation Act, 1963.

The next question is of the starting point for limitation, whether limitation is to run when the original decree in execution of which possession was taken by the plaintiff was reversed or set aside in appeal by the High Court on April 23, 1952, or when the suit was ultimately and finally dismissed by the Munsif on December 23, 1955.

On this point also there is a divergence of judicial opinion among the High Courts in India.

In Harish Chandra Saha v Chandra Mohan Das (I.L.R. 28 Cal. 113) the main contention was that the appellants'' right to restitution accrued, not on the setting aside of the ex parte decree in execution of which they were forced to pay, but only on the passing of the final decree dismissing the suit against them, "because, until the suit was finally dismissed, the appellants could not tell whether they might not ultimately be obliged to satisfy the decree." It was held:

...there is nothing in this contention. The decree which had been satisfied was the ex parte decree. Since that decree was set aside the appellants were entitled to a refund. They were in no way bound to allow the amount which they had already paid to remain in the decree-holder''s hands in case the suit should eventually be decreed against them.

Substantially similar was the question before a Full Bench in Hari Mohan Dalal and Another Vs. Parameshwar Shau and Others, Rankin C.J., speaking for the Bench observed:

In the ordinary and natural meaning of the words their right accured immediately the District Judge reversed the decision of the trial Court and reduced the amount of the plaintiff''s claim........I am of opinion therefore that we should answer the question put to us by saying that the time to be reckoned under Art. 181, Limitation Act, should be counted from the decrees of the lower appellate court and that the tenants are not entitled to get deduction of the period occupied by the appeals to this (High) Court.

In AIR 1932 207 (Privy Council) the Privy Council has construed the expression ''when the money sued for became due'' in the Limitation Act to mean the first occasion when it became so due.

In Parmeshar Singh and Others Vs. Sitladin Dube and Another , Mukerji J. observed:

The law in India allows a successful party in the Court of first instance to execute the decree, even if an appeal may have been filed against it. Similarly the law allows a party, who had succeded in the first appellate Court, to take out immediate execution without waiting for the decision of any second appeal that may have been filed in the High Court. This being the state of the law, it should follow that when the first appellate court reverses or modifies the decree of the first court, the party successful in the first appellate Court is entitled to take out execution. His right to take out execution, and therefore to apply for restitution would accrue within the meaning of the third column of Art. 181 when the first appellate court pronounces its decree.

In the same case King J. also held:

The words in third column of the first Schedule in respect of Art. 181, Limitation Act, are ''when the right to apply accures,'' and I think this must be taken to mean ''when the right to apply first accures.'' It seems to me clear that the right to apply did first accure when the lower appellate Court passed its decree. I would hold therefore that ordinarily the decree of the lower appellate Court, reversing the decree of the trial Court, would form the starting point of limitation for an application for restitution.

In Juscurn Boid v Prithichand Lal Chowdhury (A.I.R. 1918 P.C. 151) a purchaser at a sale that had been set aside by the District Judge, whose order was subsequently affirmed by the High Court, sued for refund of the amount paid to the decree-holder as "for money paid upon an existing consideration which afterwards failed", and the question was whether the period of limitation ran from the date of the decision of the District Judge or the decision of the High Court. The Judicial Committee observed:

Both the Courts have held that the failure of consideration was at the date of the first Court''s decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal.

The Supreme Court of India has also expressed the same view. In The State of U.P. v Mohammed Nooh (A.I.R. 1958 S.C. 86, 95) S.R. Das C.J., speaking for a majority of four learned Judges against one held:

There is nothing in the Indian Law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.

And, in Sita Ram Goel Vs. The Municipal Board, Kanpur and Others, a Bench of five learned Judges cited the aforesaid dictum and observed:

The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action, there is no getting behind these words in spite of the apparent inequity of applying the same.

In the light of the above dicta of the Privy Council and the Supreme Court, we cannot accept the minority view expressed by Sulaiman C.J. in Parmeshar Singh and Others Vs. Sitladin Dube and Another :

It is the pronouncement of the highest Court of appeal reversing the decree of the first Court which is the only operative and final decree and which finally reverses the decree....if there are appeals pending there is a reversal, but that is only temporary and provisional, it being uncertain what the final court of appeal would decide. The reversal becomes certain by virtue of the decree of the final Court and is only then conclusive between the parties.

I am therefore of opinion that the expression ''where in so far a decree is varied or reversed'' which occurs in Section 144, it must mean where the decree is reversed either temporarily or finally. No doubt a successful party is entitled to apply for restitution immediately after there is a temporaty or provisional reversal, but if he chooses to wait till the reversal is complete and absolute, he would neverthless be in time if he comes in within the prescribed time from the date when the decree is finally declared to be reversed without any further question or doubt.

If a ''party is entitled to apply for restitution'' immediately after the first appellate court''s decree, his cause of action for restitution arises then, and the period of limitation begins to run from the date thereof; the subsequent affirmation of that decree by the superior Courts will not give a second birth to the cause of action or a new starting point for limitation for its enforcement. The rule in Section 9 of the Limitation Act is that ''where once time has begun to run, no subsequent disability or inability to make the application stops it''. How then can the pendency of an appeal, that casts no disability or inability on the person entitled to move, stop the running of time to make the application for restitution ?

In A. Kundappayi Vs. M. Narayanan Nair, the plaintiff''s suit was dismissed with costs by the Munsif and the 13th defendant realised by execution his costs from the plaintiff. Subsequently the plaintiff''s second appeal was allowed by the Madras High Court and the suit was remanded to the first appellate court, which thereafter decreed it with costs. The question was as to limitation for the plaintiff''s application for restitution of costs realised from him by the 13th defendant, and Mathew J. held:

In such cases it seems to me to be logical to hold that the right to restitution will arise only when the court finally passes the decree after adjudicating the liability for costs of the trial court as well as the lower appellate court. Before the determination of that question, it will be futile to file an application for restitution because the decree that may be passed after remand may be same as that passed before. In such cases to require a party to approach the court and file an application for restitution before the passing of the decree by the lower appellate court seems to be rather unnecessary and therefore I hold that the application for restitution in this case filed within 3 years of the passing of the decree by the lower appellate court was well within time.

The learned Judge referred to AIR 1943 189 (Privy Council) and said;

It was held therein that the right to restitution is automatic on the reversal or variation of the decree or order. It is so in many cases but not in all. In certain circumstances the right to restitution is a matter of discretion with the court.

We regret our inability to agree to the above dicta. Restitution is a matter of right whenever the decree or order, in enforcement of which money or property has been taken from a party, is reversed. As regards refund of the amount or restitution of the property taken wrongly from the party, the right is absolute. The discretion of the court is only in regard to ''payment of interest, damages, compensation or mesne profits which are properly consequential'' thereto. No party can have any justification to retain or hold money or property taken forcefully from another, on the pretext that his suit against the latter may probably end in his favour. Neither law, nor justice allows him to do so. The learned Judge referred to Ganpat Gatlu Vs. Navnitlal Ranchhoddas, to show that the questions arising on an application for restitution may sometimes be ''sub-judice'' before the trial court. That observation seems to ignore the fact that a proceeding u/s 144 C.P.S. is a proceeding in the trial court itself. We are certain that in the above decision the learned Judge was influenced by the dictum in Varkey v Eley & Others (1962 K.L.J. 237) that an application for restitution is an application for execution of a decree. For reasons given above in this judgment both the decisions, Varkey v Eley & Others (1962 K.L.J. 237) and A. Kundappayi Vs. M. Narayanan Nair, have to be and are hereby overruled. In the present case, the cause of action for the respondent''s claim for restitution arose when the Madras High Court set aside the original decree in execution whereof the appellant took possession of the property. We are not told of any order of stay or injunction having prevented enforcement of the same at any time. The application u/s 144, C.P.C. filed more than three years after the cause of action has arisen has to be and is held barred by limitation under Article 181, Limitation Act, 1908, and dismissed. The second appeal is thus allowed, with costs here and in the lower appellate court.