- (1.) THE core issue in the present second appeal is about the starting point of limitation for filing an application under Section 144, C. P. C. for the restitution of certain amount which was paid to the decree holder outfits decree being subsequently reversed by the superior Court.
(2.) THE appellant Dr, Hari Prasad Tiwari now represented by his heirs and legal representatives herein was a decree holder. His suit No. 10 of 1947 was decreed for recovery of Rs. 12,760/- as against the State of U. P. THE said decree was put in to motion and in execution No. 25 of 1948an amount of Rs. 14,564,4 and 4 paise was recovered by the decree holder from the State of U. P. on 9. 8. 1953. The State of U. P. against the aforesaid decree had preferred an appeal to the High Court which was allowed judgment and order dated 23. 2. 1961 and the decree was ordered to be set aside. The decree holder went in appeal to the Supreme Court, whereupon judgment and order dated 18. 4. 1966 the judg ment and order of the High Court was set aside and the matter was remanded. On remand the High Court finally allowed the appeal on 18. 10. 1969. The decree in appeal was set aside and the matter was referred back to the Court of first instance for imp leading the District Board, Ghazipur and to decide the suit there-after. It is not known from the record as to what happened to the suit ultimately
(3.) ON the decree of the trial Court being set aside, the State of U. P. applied under Section 144, C. PC. for the restitution of the amount decreed and realized by the decree holder. The application was filed on 21. 5. 1973 and was registered as Misc. Case No. 36 of 1973. The application was resisted by the decree holder by filing objections to the effect that the restitution application is barred by Article 137 of the Limitation Act. The relevant extract of the objections are reproduced as under: "1. . . . . . . . . . . . . . . . . . . . . . 2. . . . . . . . . . . . . . . . . . . . . . 3. That on 31. 10. 1969 the Supreme Court set aside the decree dated 3. 5. 1948 and remanded the case to this Court. 4. That under the circumstances, the limitation for filing the restitution application under Section 144, C. P. C. commencedfrom31. 10. 1969andthe present application dated 21. 5. 1973 under Section 144, C. P. C. is obviously barred by Article 137 of the present Limitation Act. 5. . . . . . . . . . . . . . . . . . . . . " The application was allowed on 8. 1. 1974 and it was held that such an application for restitution is in the nature of an execution and the limitation for such application would be as under Article 182 (now 136) of the Limitation Act. Therefore, the application is within time. The decree holder preferred an appeal which was dismissed on 29. 10. 1975. Thus, he has come up in this second ap peal which was admitted on 20. 5. 1976. ?. . The principal ground raised and argued in this appeal is that,-the limitation for filing the restitution application is three years and it would run from 23. 2. 1961 when the decree was set aside by the High Court. Therefore, the application is patently barred by time. 8. I have heard Sri Siddharth Verma, learned Counsel for the appellant, Sri Shirish Chandra, learned Standing Counsel for respondent No. 1 and Sri Sankatha Rai, Senior Advocate for respondent No. 2. 9. The Counsel for the parties addressed me on the above question of law without any reservation br surpriseeven though the auestion af law was net for-mulated earlier. ,,. 10. It has been argued behalf of the decree holder-appellant that the de cree was set aside on 23. 2. 1961 and therefore, the limitation would run from the, said date and once it starts running" it would not stop. Therefore, the application is barred by time. In reply learned Standing Counsel has submitted that the de cree of the trial Court was finally set aside by the High Court on 31. 10. 1969 and, therefore, the limitation would start from the said date. 11. Initially, there were strong current of judicial opinion expressing conflicting views on the construction of Section 144, C. P. C. Finally, the controversy was set at rest by the five Judges Bench of the Supreme Court in the case of Mahijibhai Mohanbhai Barot y. Patel Manibhai Gokalbhai and others, AIR 1965 SC 1477 and it was laid down that the application under Section 144 for restitution is an appli cation for execution of the decree and that Article 182 (Old) of the Limitation Act is applicable. Therefore, the limitation forfiling an application for restitution is 12 years from the date the decree becomes enforceable. 12. Now the crucial point for determination is the date from which the limita tion would start in the present case. Undisputedly, the decree was passed by the trial Court on 3. 5. 1948 and it was executed on 9. 5. 1953 It was first set aside by the High Court on 23. 2. 1961. No doubt with the setting aside of the decree the cause of action accrued for restitution. However, the judgment and order of the High Court on the appeal by the decree holder was set aside by the Supreme Court on 18. 4. 1966. Thus, the judgment and order of the High Court dated 23. 2. 1961 ceased to exist with the result the decree passed by the Court below stood revived. Thus the very cause of action which had accrued for restitution vanished. Finally, the decree of the trial Court was set aside on 31. 10.-1969. This gave afresh cause of action to the State of U. P. " to apply for restitution. No doubt the limitation which is once set in motion would not be arrested in view of Section 9 of the Limitation Act for any disability but not-withstanding the above, it would altogether be a different position where the cause of action initially accrued ceases to exist and a fresh cause of action arises subsequently. In fact, Section 9 of the Limitation Act operates in a different field and deals-with personal disabilities and inabilities but not with absence of cause of action wide Special Bench decision reported in AIR 1961 Cal 353, Midnapore Zemindary Co. , Ltd. v. State of West Bengal and others. In such an event, the limitation would run from the date of fresh cause of action which in the present case happened to be 31. 10. 1969. Since under Article 136 of the Limitation Act the time prescribed for making an application for execution is 12 years from the date when the decree become enforceable, the limitation would start from 31. 10. 1969 only and not from any interior date, 13. It may be noted that the limitation always implies in context with" the existing cause of action and where there is no cause of action, there can be no limitation. Therefore, applying the above principle in my opinion limitation is related directly to the cause of action and where a cause of action is satisfied or discharged or is otherwise ceases to exist due to the inteh/ention of the Court, the limitation stopsi and where such satisfaction or discharge or inten/ention of the Court is subseauently nullified, a fresh cause of action arises giving a fresh period of limitation also. " 14. The above view of mine stand fortified bythedecisionofthe Privycouncil (1868) 12 Moor's Indian Appeals 244, Mussumatranee Surno Moyee v. Shooshee Mokhee Burmonla and others. In this case, the widow of the-Zemindar claimed certain arrears of rent against the Putnedars as a result putnee talook was put to auction and the claim of arrears of rent was satisfied from the auction money. Subsequently, the auction was set aside and the arrears realised were refunded. In the circumstances, it was held that the original cause of action for rent came to an end with the auction. However, on the auction sale being set aside, a fresh, cause of action for realisation of rent came into existence and the landlord was entitle to fresh period of limitation. Applying the ratio decided, I am of the view that in the case at hand the State of U. P. became entitle for a fresh cause of action for restitution w. e. f. 31. 10. 1969 when the trial Court decree was finally set aside. Therefore, the restitution application was within limitation and was not barred by time. 15. Apart from the above, the decree holder-appellant himself categorically submitted and rightly so that the limitation in the instantcase startsfrom 31. 10. 1969 when the decree of the trial Court was finally set aside, Therefore, having once adopted the above stand in writing he cannot turn around to contend now that the limitation would start running from 23. 2. 1961 This would amount to going contrary to the pleadings which is not legally permissible. 16. To conclude from the above discussion and the stand taken by the de cree holder-appellant in unequivocal terms in his objections, I am of view that as the restitutionn application under Section 144, C. P. C. is in the nature of an execu-tion proceeding to which Article 136 of the Limitation Act (182 of the Old Act) would apply and the limitation of 12 years would start running from 31. 10. 1969 when the decree of the trial Court was finally set aside by the High Court. It would ' not run from any earlier date or 23. 2. 1961 when the decree was previously set aside which cause of action vanished as the said judgment and order it self was set aside by the Apex Court thus, reviving the decree. 17. Accordingly, the submission made is devoid of substance and the appeal as such stands dismissed with the costs upon the parties. .;