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Hamidalli Kadamalli Vs. Ahmedalli Mhibuballi - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 308 of 1920
Judge
Reported inAIR1921Bom67; (1921)23BOMLR480
AppellantHamidalli Kadamalli
RespondentAhmedalli Mhibuballi
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 144-application for restitution-application for execution-indian limitation act (ix of 1908), article 182.;an application for restitution, under section 144 of the code of civil procedure, is an application for execution of the decree, and is governed by article 182 of the indian limitation act 1908.;kurgodigauda v. ningangauda (1917) 19 bom. l.r. 638, followed.;krupasindhu roy v. mahanta balbhadra das (1917) 3 p.l.j. 367 and hum sitigh v. sham parshad (1918) p.l. no. 67 of 1918 dissented from - - clearly, therefore, article 182 applies to applications under section 144. 4. then the question was raised that this particular application ff was barred even under article 182. we agree with the learned judge in the court below that there had been..........binding upon us. the question there arose because the applicant was a minor at the time when the appellate decree was passed and presented an application under section 144 after he attained majority. the court held that his application was an application for the execution of the decree within the meaning of section 6 of the indian limitation act. no doubt, as mentioned by mr. mulla in his code of civil procedure, last edition, p. 315, a different view has been taken by the high court of patna kritpanndu v. mahanta, (1918) 3 p.l.j. 367. and the chief court of the panjab ram singh v. sham parshad (1918) p.r. no, 67 of 1918, with all due respect to the learned judges of those courts, it appears to me that the decision i have referred to is correct, and that an application for restitution.....
Judgment:

Norman Macleod, Kt., C.J.

1. This is an appeal from the order of the District Judge confirming the order of the lower Court directing the execution to proceed further.

2. The plaintiffs had obtained a decree on the 26th September 1903 entitling them to recover an half share in certain property by partition from the defendants. In second appeal the plaintiffs' share was reduced to one quarter. Meanwhile the plaintiffs got possession under the decree of the Trial Court, and the defendants were seeking execution according to the terms of the decree of the appellate Court.

3. The first question which was raised in objection to the defendants' application was whether it was in time. It was argued that this was not an application in execution of the decree and therefore Article 182, First Schedule, of the Indian Limitation Act was not applicable. But it was decided by a Bench of this Court in Kurgodigauda v. Ningangauda : AIR1917Bom210 that an order under Section 144 of the Civil Procedure Code is an order in execution of the decree of the appellate Court. That decision is binding upon us. The question there arose because the applicant was a minor at the time when the appellate decree was passed and presented an application under Section 144 after he attained majority. The Court held that his application was an application for the execution of the decree within the meaning of Section 6 of the Indian Limitation Act. No doubt, as mentioned by Mr. Mulla in his Code of Civil Procedure, last edition, p. 315, a different view has been taken by the High Court of Patna Kritpanndu v. Mahanta, (1918) 3 P.L.J. 367. and the Chief Court of the panjab Ram Singh v. Sham Parshad (1918) P.R. No, 67 of 1918, With all due respect to the learned Judges of those Courts, it appears to me that the decision I have referred to is correct, and that 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 182 applies to applications under Section 144.

4. Then the question was raised that this particular application ff was barred even under Article 182. We agree with the learned Judge in the Court below that there had been stepa-in-aid of execution which have kept the order for restitution alive and therefore there was no bar. Therefore we dismiss the appeal with costs.

Shah, J.

5. I agree.


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