HIGH COURT OF RAJASTHAN
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(1.) This is a second appeal against the order of Revenue Appellate Authority, Udaipur dated 19.3.64 upholding the order of the Assistant Collector, Udaipur dated 7.1.1961. As second appeal does not lie against the impugned order the second appeal was treated as revision as per order of Division Bench dated 1.4.64.
(2.) The facts of the case in brief are that a suit for possession under the Rajasthan Procedure and Jurisdiction Act was decreed in favour of the non - applicant on 22.8.55 As there was question of title involved, an appeal was filed in the court of District Judge, which was also dismissed in default on 28th May, 1957. No appeal was preferred against the judgment of the District Judge dated 28 5 -57 but a restoration application was made within time. This restoration application was dismissed on 12.10.57. An appeal was filed in the Rajasthan High Court which was dismissed on 9.8.60. The non -applicants decree holders filed first execution application on 23rd November, 1955 in the court of Sub -Divisional Officer, Girwa which was dismissed in default on 21st June, 1957. Second execution application No. 4/60 was presented on 12th October, 1960. The first application bad been stayed by the District Judge but the said order was operative only till the dismissal of the restoration application on 28 5 -57. The period of limitation started on 28.5.57 and an execution application should have been made by 28th May, 1960. This objection on limitation to the execution application was taken in both the courts below but was over -ruled on the ground that all the time taken up to the dismissal of appeal in the High Court should not be counted towards period of limitation and the period should run from 9.8.60. Aggrieved by this order the present revision has come before me. I have heard counsel for the parties and perused the record. Counsel for the applicants has urged that the lower court has gone wrong in not appreciating that there was no appeal from the order of the District Judge dated 28.5.57. The appeal was against the restoration application and, therefore, the time taken in the pursuit of this application should not count towards computing the period of limitation.
(3.) The counsel for the non -applicants has stated that it will have to be determined whether a subsequent application dated 12.10.60 was a second application, or a continuation of the same which was dismissed on 21.6.57. He further stated that the order dated 21.6.57 whereunder the first application was dismissed in default cannot be said to be a final order as in the last seven or eight hearings the proce -edings were being adjourned for non -receipt of order in appeal and the decree holder had nothing to do on the date of the hearing. He also contested the legal proposition urged by the learned counsel for the applicants that the period of limitation should run from 28.5.57 and not from 8.10.60 on which the final order was passed by the High Court.;
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