JUDGMENT

Bennet, Ag. C.J.

1. This is a second appeal brought by two persons, Pt. Rama Kant Malaviya, Advocate, and Pt. Krishna Deo Chaube against a decree of the lower Appellate Court in a proceeding u/s 144, Civil P.C., for restitution. The matter in which this proceeding arose is as follows. The opposite party respondent, Pt. Satya Narain Malaviya, brought a suit for damages for defamation against 12 persons including the two appellants before us and the proceedings which followed were as follows:

7-11-27 - Decree for damages. Rs. 300 for defamation and Rs. 72 costs against twelve persons.

7-12-27 - Ten of these persons including appellants appealed and two persons Mahadeo Vyas and Thakur Prasad did not appeal.

13-1-28 - Application by plaintiff for execution against defendant 2, Brij Mohan Dube; defendants, Pt. Krishna Deo Chaube, appellant; defendant 4, Bechu Ram, and defendant 9 Parsotam Dube. This actual application is not against Pt. Rama Kant.

23-1-28 - An application to the Court for the full decretal amount of Rs. 373-13-3 to be deposited. The application is in the singular but the name written across below the application is "Ramakant waghairah madynunan". At the same time the tender was made by Pt. Krishna Deo Chaube alone. The application asked that pending disposal of appeal the sum should not be paid out.

24-2-28 - RS. 373-13-3 paid out to plaintiff by Court contrary to defendants' application.

25-1-29 - Civil Judge dismissed the suit of plaintiff and allowed the appeal of 10 defendants : no order about remaining two defendants.

29-4-29 - First application for restitution u/s 144, Civil P.C., by defendant Pt. Krishna Deo Chaube. On a date not specified the plaintiff appealed to the High Court in second appeal.

21-11-29 - High Court ordered stay of hearing of the application of defendants u/s 144, Civil P.C., pending the disposal of the second appeal.

29-11-29 - The trial Court filed the application u/s 144 for the present.

2-4-30 - The High Court discharged the stay older.

27-7-31 - The High Court dismissed the second appeal of plaintiff.

17-3-32 - Second application u/s 144 of Pt. Rama Kant and Pt. Krishna Deo for refund of Rs. 373-13-3.

9-5-32 - Second application dismissed for default.

4-1-33 - Third application for refund u/s 144, Civil P.C., by Pt. Rama Kant and Pt. Krishna Deo.

16-3-33 - Fourth application by Pt. Rama Kant through Mr. Gauri Shankar asking that the third application should be treated as a continuation of the first.

2. Now three questions have arisen in this appeal : one is a question which was the subject of a Full Bench ruling of this Court in Parmeshar Singh and Others Vs. Sitladin Dube and Another . In that Full Bench ruling there was a decision that an application u/s 144, Civil P.C., was not a proceeding in execution and Article 182 did not apply to it but Article 181, Limitation Act. In the ruling further it was held by two Judges to one that time for making an application u/s 144 begins to run from the date of the lower Appellate Court's decree when the first Court's decree was reversed and the right to apply for restitution first accrued, and the mere fact that the lower Appellate Court's decree was subsequently affirmed on second appeal to the High Court did not give a fresh start of limitation under Article 181. We have been asked to reconsider this rule laid down by the majority of the Full Bench, but we do not consider that it is necessary to go into the merits or demerits of such a point in the present case as we are satisfied that the present case is governed by another consideration which we shall now mention.

3. The third matter which arises in the present case is the point that the claim is made for appellants that the lower Appellate Court erred in holding that the present application for restitution cannot be a revival of the application filed in 1929. Now the trial Court held that the present application was really an application for revival of the old application and was well within time.