Macleod, C.J:— This is an appeal from the order of the District Judge confirming the order of the lower Court directing the execution to proceed further.
The plaintiffs had obtained a decree on the 26th September 1903 entitling them to recover a half share in certain property by partition from the defendants. In second appeal the plaintiffs’ share was reduced to one quarter. Meanwhile the plaintiffs got possession under the decree of the trial Court, and the defendants were seeking execution according to the terms of the decree of the appellate Court.
The first question which was raised in objection to the defendant's application was whether the application was in time. It was argued that this was not an application in execution of the decree and therefore Article 182. First Schedule, of the Indian Limitation Act, was not applicable. But it was decided by a Bench of this Court in Kubgodigouda Bin Lingangouda…(Original Plaintiff) v. Ningangouda Bin Ningangouda…(Original Defendant) .* that an order under section 144 of the Civil Procedure Code is an order in execution of the decree of the appellate Court. That decision is binding upon us. The question there arose because the applicant was a minor at the time when the appellate decree was passed and presented an application under section 144 after he attained majority. The Court held that his application was an application for the execution of the decree within the meaning of section 6 of the Indian Limitation Act. No doubt, as mentioned by Mr. Mulla in his Code of Civil Procedure, last edition, page 315, a different view has been taken by the High Court of Patna and the Chief Court of the Punjab. With all due respect to the learned: Judges of those Courts, it appears to me that the decision I have referred to is correct, and that an application for restitution cannot be treated as anything else than an application for execution of the decree of the appellate Court. It is the decree of the appellate Court which entitles the successful appellant to get back something which he had been deprived of by the decree of the lower Court, under which the then successful party had actually received possession. In order, therefore, to get back what he has lost, the successful appellant must apply for execution of the order which entitles him to get back that possession. Clearly, therefore, Article 182 applies to applications, under section 144.
Then the question was raised that this particular application was barred even under Article 182. We agree with the learned Judge in the Court below that there had been steps-in-aid of execution which have kept the order for restitution alive and therefore there was no bar. We dismiss the appeal with costs.
Shah, J.:— I agree.
Appeal dismissed.
R.R