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Madhya Pradesh High Court · body

1978 DIGILAW 634 (MP)

Hiralal v. Jagannath

1978-08-29

B.R.DUBE

body1978
Short Note : 1. The applicant had filed a suit for declaration and possession of the suit land. It was decreed by the trial Court, but that decree was reversed in appeal, which was filed by non-applicant No. 1. However, during the pendency of the appeal, the applicant got the decree of the trial Court executed and obtained possession of the suit land. He also recovered the cost and reliefs granted by the trial Court. The non-applicant filed execution to execute the decree passed by the appellate court. When the applicant took objection as regards the maintainability of the execution proceedings the non-applicants filed an application under section 144 and section 151 CPC on 18-6-77 for restitution of the property in suit and costs. That application was allowed by the trial Court. Hence this revision. Held : The order under revision is mainly challenged on the ground that the application for restitution was barred by time. To my mind this contention cannot be upheld. There were conflicting views as to whether Article 181 or Article 182 of the Limitation Act, 1908 applied to an application for restitution under section 144 CPC. The conflict has been settled by the decision of the Supreme Court in Mahijibhai Mohanbhai Barot v. Patel Mani bhai Gokalbhai ( AIR 1965 SC. 1477 ) in which it was held that an application for restitution under section 144 CPC is an application for execution and, therefore, such an application is governed by Article 182 of the Limitation Act, 1908 now Article 136 of the Limitation Act, 1963. It is; thus, clear that an application for restitution can be filed within a period of 12 years from the time when the claim for restitution becomes enforceable AIR 1965 S. C. 1477 relied on. Revision dismissed.