The effect of interim stay on the application for restitution and the interpretation of Article 182, Limitation Act in the context of applications for restitution.

Abdur Rahman, J.

1. The main question raised by the appellant in this appeal is whether an application for restitution made on 13th November 1925, in consequence of an order passed on appeal on 9th July 1924, and returned by the Court on the ground that an order of an interim injunction restraining the applicant from recovering the amount deposited by him for costs was still in force is still undecided and should therefore be ordered to be proceeded with. Two more applications for restitution were presented by the appellant in 1928 and in 1934. They will have to be incidentally considered but as the facts which are going to be stated will show, the decision of this appeal solely depends on the effect of the order passed on the application presented on 13th November 1925. A preliminary decree for sale instead of redemption of a usufructuary mortgage was passed by a mistake on 8th November 1922 and costs were ordered to be paid by all the defendants, who were five in number, to the plaintiff. The plaintiff (decree-holder) applied for the recovery of costs on 11th October 1923, but defendant 5 who is the appellant in the present appeal objected on the ground that the decree was preliminary in character and was therefore inexecutable. This objection was overruled by the execution Court. Defendant 5 preferred an appeal against this order in which he was successful and the order of the executing Court was reversed on 9th July 1924. In the meantime costs which had been awarded to the plaintiff had been recovered by him from defendant 5 who applied for restitution after his appeal had been accepted (C.M.P. No. 1257 of 1924.) An order for restitution was passed by the executing Court on 22nd January 1925. This was appealed against but it was confirmed by the Appellate Court. The plaintiff then applied on 11th November 1925, for an amendment of the preliminary decree and prayed that the decree for sale, which had been erroneously passed by the Court, be converted into a decree for redemption (C.M.P., No. 357 of 1925). On the same date he applied for a temporary injunction restraining defendant 5 from realizing the costs paid by him, from the plaintiff (C.M.. No. 390 of 1925). An ex parte order was passed by the execution Court and an interim stay was ordered. The fifth defendant, apparently without any knowledge of this order, presented another application on 13th November 1925, asking for restitution but instead of keeping it on the file or adjourning it to a future date, a curious procedure was observed by the executing Court. The petition for restitution was returned on 18th November 1925 to the fifth defendant on the ground that the order granting interim stay had been passed and was in force. It is on the effect of this order that the decision of this appeal depends. The application for amendment made by the plaintiff was eventually allowed on 8th March 1926, and the interim stay was confirmed by another order on the same date. Defendant 5 made an application for revision against the order granting the plaintiff leave to amend but this was dismissed by the High Court on 28th April 1931. Before this revision was decided, defendant 5 had filed another petition for restitution and had attached the application dated 13th November 1925, along with this application. This was again returned to him for compliance with certain requirements and was not re-presented. On 28th April 1934, a fresh petition for restitution was filed by defendant 5 and I have to decide first whether this is within time.

2. Having been presented after about six years of the application made in 1928 it is apparently barred, but it has been contended that the limitation for this application started on the date on which the appellants revision was ordered by the High Court to be dismissed. Applications for restitution have been treated in this Presidency as applications for execution and would therefore be governed by Article 182, Limitation Act: see Somasundara