1. An ex parte decree for rent; was obtained against the present appellants and they succeeded in having that decree set aside. On the rehearing of the case the suit against them was dismissed with costs. They applied to the Court of First Instance by one application for execution of the final decree for costs and for restitution of the amount of the ex parte decree which had been satisfied by them before it was set aside.
2. The Lower Appellate Court has held that although the application was in time as regards costs, it was not in time as regards the refund, because the appellants were entitled to apply for the refund immediately on the setting aside of the ex parte decree. The date on which the ex parte decree was set aside has not been stated; but, as the Lower Appellate Court says, it must have been more than three years before the date on which the application in question was made. The learned Judge has accordingly held, applying Article 178 of the second schedule of the Limitation Act, that that application was barred so far as the refund was concerned.
3. The main contention before us, and in fact, the contention on which all the other arguments which have been addressed to us depend, is that the Lower Appellate Court was in error in holding that, the right to apply accrued on the setting aside of the ex parte decree, and that it should have held that the right accrued on the passing of the final decree dismissing the suit against the appellants, because, until the suit was finally dismissed, the appellants could not tell whether they might not ultimately be obliged to satisfy the decree. 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 hand in case the suit should eventually be decreed against them.
4. The question has been raised whether Article 178 or Article 179 of the second schedule of the Limitation Act properly applies to an application such as that in question. It has been pointed out that in the case of Nand Ram v. Sita Ram (1886) I.L.R. 8 All. 545 where a refund was sought in execution of a decree of the Lower Appellate Court, modifying the decree of the Court of First Instance, the application was held to be an application made according to law in the proper Court in the sense of Article 179 of the Limitation Act.
5. On the other hand, the learned pleader for the respondent has referred to the case of Kurupam Zamindar v. Sadasiva (1886) I.L.R. 10 Mad. 66 in which the learned Judges, who disposed of the case, were inclined to think that an application for refund after a decree passed in appeal was governed by Article 178, since it was not one for execution of a decree or order, but to enforce a benefit by way of restitution under a decree passed in appeal.
6. It does not appear that in the Allahabad case the question was considered whether Article 179 was the one most properly applicable to the case, and we are disposed to agree with the learned Judges of the Madras High Court in considering that Article 178 is that which applies. In either case the real question is as to the starting point from which limitation began to run, and, whether Article 178 or Article 179 be applied, the appellants would be out of time.
7. The appeal is accordingly dismissed with costs.