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1974 DIGILAW 273 (ALL)

Chawli v. Mohd. Kamil Khan

1974-07-09

A.BANERJI

body1974
JUDGMENT A. Banerji, J. - This is an appeal by the decree holder, in a proceeding commenced upon an application under Section 4 of the U.P. Debt Reduction Act, 1952 (hereinafter referred to as the 'Act') the judgment debtor applicant prayed for the refund of the excess amount of the Zamindari Abolition compensation bonds and rehabilitation grant withdrawn by the decree holder. The first court allowed the application and held that the judgment debtor applicant was entitled to the refund of the amount of Rs. 499/- and issued directions to the decree holder Phool Singh to deposit the aforesaid amount within a period of a month. The appeal filed by the decree holders was dismissed. Both the courts have held that the application is not barred by limitation and on this basis allowed the application under section 4 of the Act in favour of the respondent. 2. In this appeal, learned counsel for the appellants raised one point. He urged that the question of limitation has been wrongly decided. The view taken by the court below that the present application which was moved on the 31st July, 1961 was in continuation of a previous application moved on 22-8-1959 and, as such the application is not barred by time. In order to appreciate the correct legal position it would be necessary to refer to a few relevant dates. A hypothication bond was executed on the 2nd of January, 1930. The plaintiff suit was decreed on the 19th December, 1930. The plaintiff's decree was struck off in part satisfaction of the decretal amount on the 20th of July, 1959. Thereupon on the 14th of November, 1956 Zamindari Abolition Compensation bonds and Rehabilitation Grants were withdrawn. It was only on the 22nd of August, 1959 that an application under Section 4 of the Act was moved. This application was dismissed on the 22nd of November, 1960 on the ground that it was not maintainable as no execution case was pending. The present application under Section 4 was moved on the 31st of July, 1961. The Prayer made in this application was that the decree be amended in accordance with the Act No. 15 of 1953 and the amount of the decree be reduced. A prayer was also made for the refund of the bonds withdrawn in excess of the reduced amount. The Prayer made in this application was that the decree be amended in accordance with the Act No. 15 of 1953 and the amount of the decree be reduced. A prayer was also made for the refund of the bonds withdrawn in excess of the reduced amount. This application was allowed by the learned civil Judge by his order dated 18th April, 1964 on the ground that the present application be deemed to be in continuation of the earlier application dated 22nd of August 1955. This decision of the learned civil Judge has been affirmed by the learned District Judge. 3. Article 181 of the Limitation Act 1953 provides period of limitation for three years from the date when the right to apply arose in respect of the application to which no period of limitation is provided elsewhere in the Schedule of the Limitation Act or by Section 48 of the Code of Civil Procedure 1908. The limitation in respect of restitution proceedings are governed by Article 181 of the Limitation Act 1908. The time would begin to run when the right to apply arose. In the present case the bonds were withdrawn on the 14th of November, 1956. The period of limitation as provided under Article 181 of the Limitation Act 1908 would commence to run from the 14th of November, 1956 when the bonds where withdrawn. The present application moved on the 31st of July 1961 would, therefore, obviously be beyond the period of 3 years provided under Article 181 of the Limitation Act, 1908. 4. It appears that the court below in order to get over this difficulty held that the present application was in continuation of the application moved on the 22nd of August 1959. I fail to understand under what provision of law the present application would be deemed to be in continuation of the previous application which already stands disposed of. The previous application was dismissed on the 22nd of November, 1960. Even assuming it was dismissed wrongly, the applicants were not remedyless. They could have filed an appeal. They did nothing. They allowed the order to become final. That order was neither set aside nor recalled. Consequently the application dated 22nd of August, 1959 stands completely adjudicated and disposed of. The previous application was dismissed on the 22nd of November, 1960. Even assuming it was dismissed wrongly, the applicants were not remedyless. They could have filed an appeal. They did nothing. They allowed the order to become final. That order was neither set aside nor recalled. Consequently the application dated 22nd of August, 1959 stands completely adjudicated and disposed of. I have perused the application moved on 31st of July, 1961, but I find nothing in that application to say that the applicant persisted to be treated his application in continuation of the previous application dated 22nd of August 1959. If an application stands completely disposed of by an order of the court, another application made subsequently cannot be deemed to be in continuation of the earlier application. The present application, in my opinion could not be deemed to be in continuation of the previous application dated 22nd of August 1959. This application was also beyond the period of 3 years from 14th November 1956 and was therefore, barred by time as well. 5. The other prayer made in the application was for the reduction of the amount of the debt. It may be recalled that by an order dated 8th December, 1954, the court had already reduced the amount. Therefore, this prayer also could not be granted for it had already been so reduced under the provision of the Act. 6. In my opinion, therefore the question of limitation has been wrongly decided by the court below. The view taken by the court below that the application dated 31st of July, 1961 was in continuation of the previous application dated 22nd of August, .1959 is erroneous. This application was undoubtedly moved beyond the period of 3 years from the date when the bonds were withdrawn and the present application was barred under provision of Article 181 of Limitation Act, 1908. In this view of the matter the order passed by the court below is liable to be set aside. In this view of the matter the appeal is liable to be allowed, the order of the court below is liable to be set aside. No one has appeared to contest this appeal. 7. In the result, therefore, this appeal succeeds, the judgment and decree of the court below is set aside and the application dated 31st of July 1961 is dismissed as barred by time. No one has appeared to contest this appeal. 7. In the result, therefore, this appeal succeeds, the judgment and decree of the court below is set aside and the application dated 31st of July 1961 is dismissed as barred by time. Since no one has appeared to contest this appeal in this court, I make no order as to costs.