JUDGMENT - Patel, J.

(1) This appeal from order arises under the following circumstances: The plaintiffs-respondents and the defendant-appellant are cultivators. An incident occurred between them on June 2, 1958. The appellant filed a complaint against the respondents under sections 147, 323 and 451 of the Indian Penal Code. The plaintiffs were acquitted by the trial Court on May 18, 1959. The Defendant applied for leave to appeal to the High Court and the appeal was admitted, and after hearing the parties, the appeal was dismissed on February 3, 1960. The plaintiffs field the suit for damages for malicious prosecution on February 3, 1961 before the expiry of the year from dismissal of the appeal, but much beyond one year from the date of acquittal. Relying on a decision of this Court in Purshottam Vithaldas v. Rajiv Hari, ILR 47 Bom 28, the trial Court dismissed the suit. The appellate Court curiously enough by passing this decision and following the decision in Madan Mohan Singh v. Ram Sunder Singh, ILR 52 All 553 and Sk. Mehtab v. Balaji Krishnarao, AIR 1946 Nag 46, allowed the appeal holding that the suit was not barred by limitation, and remitted it to the trial Court for disposal in accordance with law. Against this decision, this second appeal is field. It came for hearing before our brother Paranjpe, J., who directed it to be placed before a Division Bench as it involved a question of some importance.

(2) Originally a second appeal was filed. Inasmuch as the trial Court had dismissed the suit on a preliminary point of limitation only, this was brought to the notice of Mr. Udyoji who applied that the appeal should be concerted into one against an order which has been allowed to be done.

Article 23 of the Limitation Act, Schedule I, prescribes one years period of limitation for compensation for a malicious prosecution and the time begins to run "when the plaintiff is acquitted, or the prosecution is otherwise terminated". A[art from authority, the language of this provision would seem to be plain. In the case of an acquittal, it provides a terminal point from which the time begins to run, the terminal point being the acquittal. Now, an acquittal is an acquittal, whether or not the complainant files a revision application against the order of acquittal or an appeal or the State files an appeal. The position is not altered by the addition of section 417(3) in the Code of Criminal Procedure which permits the complainant, in the case of a private complaint, to file an appeal to the High Court against an order of acquittal with its permission of leave. The original acquittal is still operative, and on the language of the provision, it is the date of acquittal from which time begins to run. The other alternative is that "the prosecution is otherwise terminated". Now, whenever a prosecution is otherwise terminated". Now, whenever a prosecution is started, it may not necessarily end in an acquittal. A prosecution may end, either in acquittal or conviction. If it is the first, then it is governed by the first part of this provision, and if it is the second, there can be no case for a suit. It may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing of the complaint. The latter part of the provision "the prosecution is otherwise terminated" is intended to meet such cases, and here again, it is the end of that proceeding which is operative for all intents and purposes and governs the point of time when the period begins to run.

In our view the first part of this provision is indicative of the meaning to be attached the letter part, and it could only mean the first terminal point when the prosecution ends in the first Court, for the reason that the effect of such an ending is the same as in the case of an acquittal. This is the view expressed in ILR 47 Bom 28. In this case, the plaintiff was discharged on November 28, 1918. The defendant made an applicat

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