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2003 DIGILAW 1336 (MAD)

Ziaulla Sheriff v. Saffulah Baig

2003-08-22

B.R.SINGARAVELU

body2003
Judgment : 1. Plaintiffs in O.S.No.1227 of 1987 on the file of the District Munsif, Sathyamangalam are the revision petitioners herein, in whose favour there was an ex parte decree on 27.1.1989 for delivery of possession. On there filing an execution application, delivery was made on 27.4.1989. 2. The respondents/defendants filed an application under O.9, Rule 13, of the Civil Procedure Code and the same was allowed on 26.6.1991. They filed a review application protesting against the delivery made in favour of the revision petitioners/plaintiffs and the same was dismissed. The civil revision petition was also dismissed on 23.3.1993. Subsequently, their application preferred under Sec.151 of the Civil Procedure Code for maintaining status quo was also dismissed. It was on 1.3.1999, again the respondents/defendants were set on ex parte in the suit. On their subsequent application under O.9, Rule 13 of the Civil Procedure Code, the ex parte decree was set aside on 29.2.2000. Thereupon they asked for restitution of possession under Sec.144 of the Civil Procedure Code and the same was ordered on 11.9.2001. It is against which, this revision has been preferred. 3. Learned counsel for the revision petitioners/plaintiffs relied upon the judgment in the case of Garuda Singh v. Dhana Bai A.I.R. 1989 Ori. 103, which would say that the provisions of Sec.144 of the Civil Procedure Code may not be attracted in a case where a decree is set aside under O.9, Rule 13 of the Civil Procedure Code. In the same judgment, it was observed that even if the provisions are not attracted, the inherent powers of the Court can be exercised for restitution where a party has been injured by the act of the Court by application of the maxim actus curiae neminem grevabit. 4. He also relied upon the judgment in the case of C.S.Ratanchand v. Multanmull A.I.R. 1964 Mys. 117and in the case of Mahijibhai v. Manibhai A.I.R. 1965 S.C. 1477to contend that within three years’ period of limitation, the restitution can be availed of under Sec.144 of the Civil Procedure Code. 5. In this case, the two ex parte decrees were set aside on 26.6.1991 and 29.9.2000. It is only upon the later order, the respondents/defendants preferred to apply Sec.144 of the Civil Procedure Code and it is well within time because the restitution was ordered on 11.9.2001. 5. In this case, the two ex parte decrees were set aside on 26.6.1991 and 29.9.2000. It is only upon the later order, the respondents/defendants preferred to apply Sec.144 of the Civil Procedure Code and it is well within time because the restitution was ordered on 11.9.2001. This is within three years from the date of setting aside the ex parte decrees. 6. What the revision petitioners/plaintiffs would contend is that by construing the date of setting aside the first ex parte decree, namely, 26.6.1991. The application under Sec.144 of the Civil Procedure Code is not within the period of three years. 7. It is true that it is not within the period of three years from the date of setting aside the first ex parte decree, namely, 26.6.1991. There is no impediment for the respondents/defendants to avail the second order setting aside the ex parte decree and what Sec.138 of the Limitation Act prescribes is three years from the date when the right to sue accrued. 8. There were two dates when right to sue accrued for the respondents/defendants. One was on 26.6.1991 and another was on 29.9.2000. They did not avail the first opportunity and they only availed the second opportunity. In unmistakable terms, this Court can say that on both dates, the right to restitution was made available for them. It is simply because they had not availed the first opportunity, it cannot be said that they can never avail the subsequent opportunity. Also, there is no condition precedent for availing the second chance that they should have necessarily availed the first chance. There is no such proposition of law and in the absence of which, the restitution was rightly made. 9. Learned counsel for the respondents also relied upon the judgments in the case of Pasupathy v. Mohamed Ismail (1968)1 M.L.J. 746and in the case of Binayak v. Ramesh (1966)3 S.C.R. 24 , where such restitution was well recognised. 10. Accordingly, the civil revision petition is dismissed. No costs. Consequently, the above C.M.P. is also dismissed.