1. In these cases Mr. Suhrawardy and Graham, JJ. have differed on a question of law which has been referred to us under Section 98, Civil P.C., in the following terms:
Whether in the circumstances of the present cases, time to be reckoned under Section 181, Lim. Act, should be counted from the date of the decrees of the High Court dismissing the appeals from the decrees of the lower appellate Court, or from the dates of the pronouncement of the decrees of the lower appellate Court, or whether the respondents are entitled to get deduction of the period occupied by the appeals to this Court.
2. The facts which give meaning to this question of law are as follows:
The plaintiff brought a series of rent suits against tenants and on 3lst July 1919 obtained decrees from the Court of first instance for the amount of his claim. During the pendency of appeals in the lower appellate Court, the plaintiff realized by 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 correct.
3. Both the learned Judges in this Court are in agreement that the article applicable to the case is Article 181 and not Article 182. Thinking this question to be well settled so far as this High Court is concerned they have not thought fit to state the point of law, upon which they differed, as broadly as they might have done, e.g., by making a reference on the question whether the applications under Section 144, Civil P.C., are barred by limitation. The reference has been made in a limited form and upon the basis that the article applicable is Article 181. This has been done deliberately by the learned Judges and I see no reason to quarrel with this exercise of discretion. This method of reference is now provided both by Clause 37, Letters Patent, and by Section 98 of the Code and the method will be productive of much disorder and absurdity unless the terms of these enactments are strictly complied with. However tempting it may be to argue other points than the point or points referred, the temptation must be resisted. At the hearing we accordingly refused to discuss once more the question of the applicability of Article 181 to applications under Section 144 of the Code. It is a matter upon which different High Courts have taken different views and are likely to go on taking different views for many years.
4. The view taken by Suhrawardy, J., was that unless it could be held that by reason of the plaintiff's appeal from the decrees of the District Judge the tenants' right to claim restitution was suspended, it must be hold that their right accrued on the date of his decrees. Following the decision in Sarat Kamini Dasi v. Nagendra Nath Pal A.I.R. 1926 Cal. 65, he held that no doctrine of suspension was applicable to these cases and that there was no other principle of law under which the time prescribed by Article 181 could be extended. Graham, J., on the other hand held that time ran against the tenants only from the date when the final pronouncement was made in the proceedings instituted to test the propriety of the first Court's decrees. He thought it reasonable to hold that in such cases as the present limitation is saved on the ground that the relief granted by the decrees of the District Judge was imperilled by the appeals. He was accordingly prepared to follow the decision of a Division Bench in the case of Atul Chandra v. Kunja Behary  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  28 Cal. 113, an ex-parte decree had been obtained and satisfied in execution. It was subsequently set aside and upon a retrial the suit was dismissed with costs. Upon an application for refund of the money paid in satisfaction of the ex-parte decree, it was contended that the right to apply did not accrue on the setting aside of the ex-parte decree but on the passing of the final decree dismissing the suit. It was said by Stevens, J.:
We think that 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.
5. It is to be observed that Section 144 of our present Code makes it obligatory upon the Court of first instance to grant restitution:
Where and in so far as the decree is varied or reversed.
6. In the present case the decrees of the District Judge were dated 14th August 1920 and those of the High Court 8th August 1923. It seems unreasonable to say that for the tenants to leave the excess amounts in the pocket of their landlord for some three years without applying for a refund thereof was to take a course which practical good sense dictated, so as to prevent it being said with truth or justice that their conduct was dilatory. It appears to me therefore that the tenants' case must be rested upon other grounds.
7. The only other ground to which they can resort is the doctrine of which the best known and most frequently repeated exposition is to be found in the judgment of Mitter, J., in Ram Charan Bysak v. Lakhi Kant Bannik  7 B.L.R. 704, a case decided under the Limitation Act, 1859:
Whether the decree of the appellate Court is for reversing or for affirming the decree against which the appeal is preferred, it is, in either case, the final decree in the cause, and as such the only decree which is capable of being enforced by execution, after it is once prononnced. If the decree of the lower Court is reversed by the appellate Court it is absolutely dead and gone. If on the other hand it is affirmed by the appellate Court it is equally dead and gone, though in a different way, namely, by being merged in the decree of the superior Court, which takes its place 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  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 A.I.R. 1926 Cal. 981, 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 A.I.R. 1923 Cal. 389, 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. The decision of Newbould and B.B. Ghosh, JJ., does not appear to have been cited before the Division Bench which made this reference and the line of argument disclosed therein has not been discussed in either of the judgments. In my opinion, however, our answer to this reference must depend upon the view which we take of the applicability to the present question of the principle therein relied on.
9. Now, the article with which we are concerned, Article 181, is in the full sense of the word a residuary article which is limited in its scope to applications. The broad scheme of the Limitation Act is that so far as possible the terminus a quo of the period of limitation shall be stated specifically with reference to each class of suit, appeal or application. The old English statutes of limitation had been content to prescribe the period by putting as the limit so many years after the cause of action. The Indian Legislature endeavours in detail by the Limitation Act to state in the third column of the schedule, the event which is to be taken as completing a cause of action, that is the date from which time begins to run. The language of the third column of the schedule should in general, if not indeed always, be so interpreted as to carry out the true intention of the legislature, that is to say to date the cause of action from the date on which the remedy is available to the party. This principle has been applied to the first clause in the third column of Article 182, Rungiah Goundan & Co. v. Nanjappa Row  26 Mad. 780; of. M. Vittil Seeti v. Kunhi Pathummal  40 Mad. 1040.
10. In Article 181 the legislature makes provision not for one definite type of cases but for an unknown number of oases of all kinds. The provision which it makes is specific as regards the period of limitation but as regards the terminus a quo it is content to state in general language and quite simply the fundamental principle that for the purposes of any particular application time is to run from the moment at which the applicant first had the right to make it.
11. When in a case such as the present we are asked to import language to the effect that decrees become dead when they are affirmed on appeal, it is necessary to be careful lest we be ridden by a metaphor. This becomes all the more necessary when it appears that the language 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 the only decree which can be amended, Muhammad Sulaiman v. Muhammad Yar Khan  11 All. 267 (F.B.), or which can be reviewed, Chandra Kant v. Lakshman  24 C.L.J. 517, or which can operate as res judicata, Kailash Chandra v. Girija Sundari  39 Cal. 925, or which can be made final or absolute, Gajadhar Singh v. Kishan Jivan Lal Khan  39 All. 641, Uma Charan v. Nibaran A.I.R. 1923 Cal. 389, or which puts an end to the period for which mesne profits can be ascertained, Bhup Indar v. Bijai  23 All. 152. For each of these propositions there is specific practical reason. Indeed there are decisions of the Judicial Committee covering most of these points Brij Narain v. Tejbal Bikram  32 All. 295, Abdul Majid v. Jawahir Lal A.I.R. 1914 P.C. 66, Bhup Indar v. Bijai Bahadur  23 All. 152. If, however, the full vigour of Mitter, J.'s language is pressed in the present case, I cannot omit to point out that that language itself was considered by the Judicial Committee in the case of Kristo Kinkar Roy v. Raja Burroda Caunt Roy [1870-72] 14 M.I.A. 465, at 488 to 492. In the view taken by the Board it became unnecessary to decide the question whether the decree of the High Court affirming a decree of a Zillah Court was to be taken to incorporate the latter in itself, so that for the purposes of execution, the decree to be executed was to be taken to be a decree of the High Court. To that question the words of Mitter, J. were understood to be limited but even so the opinion intimated was:
If the question were res Integra, their Lordships would incline to the view taken by the Judges of the High Court in the present case, viz. that the execution ought to proceed on a decree, o which the mandatory part expressly declares the right sought to be enforced. Considering, however, that, for the reasons already given, the question is not of much practical importance, their Lordships will not express dissent from the rulings of the Madras Court, and of the Full Bench of the Bengal Court, further than by saying, that there may be oases in which the appellate Court, particularly on special appeal, might see good reasons to limit its decision to a simple dismissal of the appeal, and to abstain from confirming a decree erroneous or questionable, yet not open to examination by reasons of the special and limited nature of the appeal.
12. The Privy Council appears to me to have 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 the Board, delivered by Sir Lowrence Jenkins, was in these terms:
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.
14. Now Article 97 is only a particular application of the general principle expressed in Article 181 and, in my judgment, Article 181 being a residuary article intended to meet all manner of cases it is necessary in applying it to see whether the nature of the case required that the decree which has been affirmed on appeal should be disregarded in arriving at the date at which the right in the applicant first accrued. That this may sometimes be necessary for the proper application of Article 181 to applications in execution may well be thought to follow from the circumstance that it cannot be said that Article 182 covers all possible oases of applications for execution. See Rungiah Goundan & Co. v. Nanjappa Row  26 Mad. 780. The case of Uma Charan v. Nibaran A.I.R. 1923 Cal. 389, relied upon by Newbould and B.B. Ghosh JJ., in the unreported case already mentioned, is another instance of the same thing. The governing consideration in that case was that only one decree can be made final and that must be the preliminary decree of the appellate Court. It is true that the Bombay Sigh Court in Kurgodigauda v. Ningangauda  41 Bom. 625 applied Article 6, Lim. Act, to an application under Section 144, Criminal P.C. on the footing that the words 'an application, for the execution of a decree' are not to be construed so narrowly as to exclude an application for restitution in consequence of the decree. It is further true that such an application may be said to be concerned with the working out of the decree which varies or reverses the decision of the lower Court. It is an application for relief which is consequential upon the appellate Court's decree of reversal. But the relief is not in all cases granted by the decree of the appellate Court taken by itself. If it is so granted, then a case arises of the character which was decided in this Court in Appeal from Appellate 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 because it was confirmed on appeal it seems to me to be wrong to do so. To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously. Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd. I am of opinion therefore that we should answer the question put to us by saying that the time to be reckoned under Article 181, Lim. 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 the Court.
16. As no further point remains to be determined, the judgment of Suhrawardy, J. must take effect; the appeals of the plaintiff must be allowed and the tenants' application under Section 144, Civil P.C. must in each case be dismissed. There will be no order as to costs save that the plaintiff must have the costs of the hearing before us. Five gold mohurs for the whole case.
C.C. Ghose, J.
17. I agree.
18. I agree.