Sm. Nagini Devi and others vs Hiralal

Nigam, J.C.

In Civil Suit No. 49 of 1933 of Nasirabad, later renumbered as No. 28 of 1943 of the court of the Extra Subordinate Judge, Ajmer, the trial court awarded costs of the suit to Chouthmal plaintiff. In appeal No. 120 of 194 from that decree, the learned Additional District Judge dismissed the suit and allowed costs to the defendant from the plaintiff. This judgment We passed on 30-1-1947.

In second appeal my learned predecessor decree the plaintiff''s suit in part and directed that to parties should bear their own costs in all the tore courts.

In execution of the decree granted by the first court, the defendant had deposited- the sum of Rs. 92/1/- in the execution court and this amount had been taken away by the plaintiff on 26-10-1943. After the judgment of this court, Hiralal defendant, gave an application on 2-7-1951 asking for restitution in respect of the sum of Rs. 92/1/-withdrawn by the plaintiff on 26-10-1943. The learned Subordinate Judge directed the plaintiff to deposit the amount within a month. Chouthmal, plaintiff, appealed against that order. The appeal was, however, dismissed by the learned District Judge and now this second appeal has been filed. I have heard the learned counsel for the parties.

The first question for my consideration is whether Art. 181 or Art. 182 will apply. As pointed out by the learned District Judge, there is difference between the views of the different High Courts. The High Courts at Madras, Bombay, Patna, Rangoon and Travancore-Cochin as also the Chief Court at Lucknow are ranged against the High Courts of Allahabad, Calcutta. Lahore and Nagpur. The practice of this Court, however, is in case of difference of opinion to follow the views of the Allahabad High Court. As such, I hold that Art. 181, Limitation Act will apply.

The second question for my determination is the date from which the limitation period will start to run against the applicant Hiralal. The'' learned counsel for the appellant contends that this period will run from 30-1-1947, the date on which the plaintiff, Chouth Mal was held not to be entitled to receive any costs from the defendant Hiralal. The contention of the learned counsel for the respondent is that the period of limitation will not start running till the date of this Court''s order as it amended the order of the first appellate court. Section 144, Civil P.C uses the phrase ''where and in so far as a decree is varied or reversed, the Court of first instance shall, ........................''. So far as the costs payable to the plaintiff are concerned, the order of the first appellate court was not varied by this Court and, as such, it is clear that the period of limitation will start running against the defendant on 30-1-1947. As such, the application, dated, 2-7-1951, was barred by limitation.

In that view, I accept this second appeal and direct that Hiralal''s application, dated 2-7-1951, be rejected. The parties will bear their own costs throughout.