SHAH, J. -
(1.) On a suit filed by late Tota Ram, husband of the present respondent for the recovery of the amount, an amount of Rs. 18,572/- was paid to the plaintiff late Tota Ram by means of a preliminary decree passed by the Court below, which was ultimately set aside on appeal by the High Court. In consequence whereof the respondent was bound for restitution and to repay the amount paid under a decree, which was later set aside by the High Court. The appellant, who was the defendant in the said suit filed an application before the trial Court (District Judge), Jammu on Dec. 17, 1971 for restitution under S.144 of the Code of Civil Procedure claiming the repayment of the amount of Rs. 18,572.20 paise paid to the husband of the respondent late Tota Ram under the preliminary decree, which stood set aside. The application was contested inter alia on the ground that no such relief can be granted at this stage, as the respondent has filed a suit for recovery of Rs. 23,785.42 paise against the present appellant after adjusting the said amount of Rs. 18,572.20 paise which was received by him under the preliminary decree of which the restitution is sought. The learned trial Court after considering the application and the objections filed held under the impugned order that the question of refund of this amount at this stage does not arise holding that the defendant/present appellant is, however, at liberty to seek any other remedy for the same, if he feels his claim a genuine one. It is further found by the learned trial Court that the amount so claimed was lying with the appellant in deposit for the plaintiff/respondent, thus the application was rejected.
(2.) The appellant being aggrieved by the order passed on May 19, 1977 first filed a revision before this Court. On a preliminary objection raised on behalf of the respondent in C.M.P. No. 109 of 1977 that the revision is not maintainable against the impugned order, as the same is purported to have been passed under S.144 of the Code of Civil Procedure, which is appealable. This Court after hearing the respective parties, by order dated May 4, 1979 upheld the preliminary objection and on submission of counsel for the petitioner allowed the revision petition to be converted into appeal with the direction that the appellant will deposit the necessary Court fee, if not already paid. It is further held that the question of limitation is, however, left open to be decided by the Division Bench, which will hear and dispose of the appeal. In accordance with R.14 of the Jammu and Kashmir High Court Rules, 1975, since the appeal of the valuation of more than Rs. 15,000/- is required to be placed for admission and hearing before a Division Bench of this Court, the present appeal, which is registered as Civil First Miscellaneous Appeal No. 44 of 1979 on 12-11-1979 has come up for hearing before us.
(3.) At the outset, learned counsel for the respondent raised a preliminary objection regarding limitation and submitted that the impugned order was passed by learned District Judge, Udhampur on May 19, 1977 in accordance with the limitation prescribed for filing revision or appeal to the High Court, the period of 90 days prescribed expired on August 17, 1977 as the intervening two months of May and July were of 31 days, the appellant applied for the supply of certified copy on August 29, 1977, which according to the certified copy was ready on 2-9-1977 and delivered to the appellant on the same day. The revision was filed initially on 1-11-1977. The application for condonation of delay in filing the revision was filed after 11 days of the filing the revision, i.e., 12-11-1977, which was disposed of in default of the filing the objections by the respondent by the Court on Nov. 23, 1978 condoning the delay in filing the revision. However, while the revision was converted into an appeal, the learned single Judge left the question of limitation open in appeal, hence the objection. Even treating, the appeal to be filed on 1-11-1977, when the revision was filed, which is allowed to be converted into an appeal for computing the copying days, i.e. 29th August and 2nd of September, 1977 both days inclusive are counted at only 5 days meaning thereby that the appellant should have filed the revision or even the appeal within 95 days as provided under S.12 of the Limitation Act after computing the period of copying days, the appeal which was due to be filed on 17-8-1977 should have been filed at the most by 22-8-1977; whereas the present appeal has been filed on 1-11-1977, which is barred by 70 days. Learned counsel for the appellant in reply to the preliminary objection regarding limitation placed reliance on the disposed of application which was filed by him on 12-11-1977 for condonation of delay and submitted that the learned single Judge after having once condoned the delay by his order dated Nov. 23, 1978 was left with no jurisdiction to revive the question of limitation by his order dated May 4, 1979, when he allowed the revision to be converted into an appeal.;