SAHKAR - (1.) THE following judgements of the court were delivered by:
(2.) THESE appeals arise from two miscellaneous applications made to the trial court which was the court of the Civil Judge, Nadiad in the State of Gujarat. One of these applications was for execution of orders for costs awarded and the other was under s. 144 of the Code of Civil Procedure for restitution of money and property taken in execution of a decree reversed in appeal. 'Me appellant is the successor-in-interest of the plaintiff in the suit out of the proceedings of which these appeals arise and the respondents were the defendants there. The appellant's predecessor-in-interest had filed the suit for possession of land against the respondents and another person, now dead. The suit was decreed with costs by the trial court on 30/11/1945 but that decree was set aside on 13/07/1949 on appeal by the defendants to the High court of Bombay. While the appeal was pending the appellant's predecessor-in-interest had in execution of the decree of the trial court obtained possession of the land and realised the costs awarded. Also pending the appeal the appellant's predecessor-in-interest having died, the appellant was substituted in his place. After the appellate decree had been drawn up, it was amended on 24/08/1950 by deleting the name of one of the appellants mentioned therein, being one of the defendants to the suit, on the ground of his death. The appellant got leave from this court under Art. 136 of the Constitution to appeal from the appellate decree but such leave was revoked on 24/11/1952 as the appellant had failed to carry out the condition on which it had been granted. Thereafter on February 1 1, 1 9 5 3, the respondents filed in the trial court the application for execution for recovering the costs awarded to them in the proceedings up to the date of the revocation of leave by this court and out of this application one of the appeals has arisen. On 13/02/1953, they filed the other application under s. 144 of the Code for restitution of the land taken and the costs realised from them in execution of the decree of the trial court and out of this the other appeal has arisen. The only question argued in each appeal is whether it is barred by limitation. As regards the application for execution, I agree with my learned brother Subba Rao that it is not barred by time and the appeal arising from it, that is, appeal No. 777 of 1964 should be dismissed. On this matter I, have nothing to add to what my learned brother has stated in his judgment.
(3.) ON the other application, namely, the application for restitution under s. 144 of the Code, I have come to a conclusion different from that of my learned brother. The question here also, as I have already said, is whether the application had been made beyond the time specified and was barred. The appellant, who was the defendant to that application, contended that an application under s. 144 was not in execution and would be governed by Art. 181 of the Limitation Act which covers applications not specially provided for in the Schedule to that Act and not by Art. 182 relating to execution. The respondents who wanted the restitution, contended on the other hand that the case came under Art. 182 as the application for it was really one in execution. Subject to certain questions which I will later discuss, it is not in dispute that if Art. 181 applied, then the application would be barred while it would not be so if the case was governed by Art. 182. The question, therefore, in this appeal is whether an application under s. 144 is an application in execution. On that question there has been a great divergence of opinion in the High courts. It would not be profitable to refer specifically to the reasons given in these judgments in support of the views respectively adopted, for these reasons will, in substance, all be discussed later. In my view, an application under s. 144 is not one for execution and I proceed now to state my reasons for that view.;