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TMI Blog1928 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... execution the whole of his decretal amounts. Thereafter, on 14th August 1920, the lower appellate Court allowed the appeals in part and reduced the amounts for which the plaintiff could get decrees. On 8th August 1923 the plaintiff's appeal from this decision was dismissed by the High Court. In May and June 1924 the tenants made applications under Section 144, Civil P.C., for restitution of the amounts which in execution of the trial Court's decree had been paid by them in excess of the sums ultimately decreed to be due. These applications have been resisted by the plaintiff upon the ground of limitation, the contention being that Article 181 of the Schedule of the Lim. Act of 1908 governs this matter and that the right of the tenants to apply for restitution under Section 144, Civil P.C., accrued to them more than three years before May 1924, namely, on 14th August 1920 when the lower appellate Court reduced the amounts of the plaintiff's decrees. The Munsif and the District Judge have both rejected the plaintiff's contention and Graham, J., in this Court has taken the same view. Suhrawardy, J., on the other hand has thought the plaintiff's contention to be cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1918] 27 C.L.J. 451 and to hold that the tenants' applications for restitution were in time. It may be as well to deal first with the suggestion that the tenants' conduct in postponing their applications until the decision of the High Court had been given upon the matter, was reasonable and not negligent and that it would be a hardship in the circumstances of these cases to say that the law required them to make their applications within three years from the decision of the District Judge. If the case for the tenants has to be put upon such grounds it must, in my opinion be rejected for more than one reason. It appears to me that in applying the Indian Limitation Act to particular cases, the Courts are not warranted in introducing savings or exceptions which are not found in the statute either because these may be within the reason of other exceptions which are to be found in the statute or because of considerations of mere hardship. In this respect I agree entirely with the judgment of Suhrawardy, J. I am of opinion further that in the present cases there is no hardship. In Harish Chandra Saha v. Chandra Mohan Das [1901] 28 Cal. 113 an ex-parte decree had been obtained a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all intents and purposes. Both the decrees cannot exist simultaneously. 8. It does not appear to me that the decision in Atul Ghandra v. Kunja Behary [1918] 27 C.L.J. 451 proceeded upon this principle. Rather it would appear to have proceeded upon notions of due diligence or of hardship from which I have already expressed my dissent. But in Fazalar Rahaman v. Abdul Samad in appeal from an appellate order, where the facts were very similar to the facts of the present cases, it was held that the time for an application for restitution ran from the date when the decree of reversal was affirmed in second appeal and not from the date of the decree of reversal. That was a decision of Newbould and B.B. Ghosh, JJ., and it was based upon the observations of Mitter, J., in the case to which I have referred. Reliance was also placed on Uma Charan v. Nibaran where, on a similar line of reasoning, it was held that when a preliminary decree in a mortgage suit has been affirmed on appeal, an application for a final decree is an application to make final the decree of the appellate Court and that under Article 181, Lim. Act, time runs from the date of the appellate Court's decree. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employed was directed to the question of execution, a question which has since been dealt with by what is now Article 182 of the Schedule to the Lim. Act, with which we are now concerned. Mitter, J. was applying his mind really to put the matter in terms of the Lim. Act of 1908, to the question whether Article 182 or Article 183 is applicable to the cases of execution of a decree of a provincial civil Court which has been affirmed on appeal by the High Court. Still greater caution is suggested by the fact that the language employed by the draftsman of the schedule to the Act of 1908 is in Article 182 inconsistent with the rigour of the metaphor in question. Article 182 speaks of the execution of a decree or order and dates the terminus a quo in a case where there has been an appeal from the order sought to be executed, from the date of the final decree or order of the appellate Court or the withdrawal of the appeal. I do not say this by way of casting doubt upon the view that where a decree has been affirmed by a High Court on appeal limitation for purposes of execution runs afresh from the appellate decree. Nor am I desirous of disputing that in such cases the appellate decree is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had difficulty in appreciating that there is any necessity or reason that decrees become dead for all purposes when affirmed. 13. The decision of the Privy Council in Juscurn v. Prithichand A.I.R. 1918 P.C. 151 was a direct refusal to apply the principle that a decree which has been affirmed in appeal is for all purposes dead. In that case the question of limitation arose on a claim by the purchaser of a patni taluq at a sale for arrears of rent under Bengal Regulation 8 of 1819 in suits by the darpatnidars to which the purchaser was a party. The sale had been set aside by the District Judge on 24th August 1905 and the High Court on appeal affirmed his decision on 3rd August 1906. The appellant sued for certain sums he had been required to pay to the zamindar and his suit was treated as a suit for money paid for an existing consideration which afterwards failed. The question was whether the three years prescribed by Article 97, Lim. Act, 1877, should run from the date of the decision of the District Judge or the decision of the High Court, acting upon the footing that it was the reversal of the sale which constituted the plaintiff's cause of action, the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Order 301 of 1922, on 27th August 1923. In such a case the remedy provided by Section 144, Civil P.C. is not required. 15. All that it is necessary to do is to have execution of the appellate Court's decree as it stands. To such a case Article 182 would apply as was held by Chatterjea and Panton, JJ. But the application to be made under Section 144 is an application which must be made to the Court of first instance whether the decree varied or reversed was passed by that Court or a higher Court. That Court has to determine whether the applicant is entitled to any and what benefits by way of restitution or otherwise by reason or the decree of the appellate Court varying or reversing a previous decree. We have to determine this case under Article 181, Lim. Act, which directs us in general language to find out the date on which the applicants' right] accrued. In the ordinary and natural meaning of the words their right accrued immediately the District Judge reversed the decision of the trial Court and reduced the amount of the plaintiff's claim. Unless, therefore, we are required by reason of the nature of the matter to (sic) the effect of that decision b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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