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1987 DIGILAW 785 (ALL)

Bikrama v. Hari Shankar

1987-08-14

S.K.LAKHTAKIA

body1987
JUDGMENT S.K. Lakhtakia, Member - This is a revision against the order of the Additional Commissioner I, Varanasi Division, Varanasi dated 3-3-1986 through which the revision filed against the order of Sri V.C. Dixit, Assistant Collector 1st Class, Jaunpur dated 17-7-1984 was dismissed. 2. The facts of this case in brief are that a suit under Section 229-B of U.P.Z.A. & L.R. Act was brought by the revisionist Bikrama which was decreed ex-parte on 2-5-1978. A restoration application was moved by the defendant Hari Shanker on 3-7-1978 but it was rejected, hence an appeal was preferred before the Additional Commissioner which was allowed on 18-8-1982 and the case was remanded to the trial court after being restored for disposal. On 3-9-1983 the defendant Hari Shanker gave an application to the trial court that since Amaldaramad had been effected in the papers in pursuance of the ex-parte decree dated 2-5-1978 and the name of the plaintiff had been recorded as bhumidhar in place of the defendant, that amaldaramad should be withdrawn and the old entry be restored in favour of the defendant. His application was allowed by the trial court and a revision against that order was also dismissed, hence this revision. 3. Heard the learned counsel for both the parties. Perused the record. 4. The learned counsel for the revisionist argued that the order for the recalling of the amaldaramed amounted to a prayer under Section 144 C.P.C. the limitation for which the limitation is only one year under Article 182 of the Indian Limitation Act, hence the application of the defendant dated 3-9-1983 was liable to be dismissed and the trial court acted illegally in allowing the same. He has placed reliance on a ruling reported in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai and others, AIR 1965 (SC) page 1477. I have carefully gone through this ruling and I find that it has been clearly laid down by the Supreme Court that the limitation for restitution is only one year under Article 182 of the Indian Limitation Act. The prayer made in the instant case about the revival of old entries also amounted to restitution and, therefore the application should have been moved within one year from the date of the order passed by the Additional Commissioner dated 18-8-1982. The application was moved by the defendant on 3-9-1983 which was obviously beyond the period of limitation. The prayer made in the instant case about the revival of old entries also amounted to restitution and, therefore the application should have been moved within one year from the date of the order passed by the Additional Commissioner dated 18-8-1982. The application was moved by the defendant on 3-9-1983 which was obviously beyond the period of limitation. No application under Section 5 of the Limitation Act for condonation of delay was moved along with this application, hence there was no question of its being allowed by the trial court since it was time barred. The learned counsel for the appellant could not show any law against the said ruling. The learned Additional Commissioner also failed to appreciate this legal position which was probably not argued before him. However the application of Hari Shanker dated 3-9-1983 being time barred could not be allowed, hence the order of the trial court is beyond jurisdiction and it cannot be maintained. For the same reasons the order of the learned Additional Commissioner is also liable to be set aside. 5. As a result of the above discussion this revision is allowed and the orders passed by the trial court and learned Additional Commissioner dated 17-7-1984 and 3-3-1986 respectively are set aside. Let the records be sent back to the trial court for disposing it of according to law.